N. Y. Supreme Court.-Dole v. Gold.

Independent of all these considerations, my opinion is, that the respondents are liable on their express promise. When the libellant presented the order of the master, a part of it was paid, and a promise given to pay the residue. The libellant had a right to consider this as a distinct admission of their liability. If this order was to be considered as a piece of commercial paper, and the principles of the commercial law to be applied to it, they would be liable upon it as acceptors. For an acceptae may be by parol, or may be inferred from the conduct and acts of the party. (Story-Bills of Exchange, § 243.) In reliance on this promise, the libellant forebore to commence proceedings against the vessel or the master. It is now too late for the owners to deny their liability.

In every point of view, I think the libellant is entitled to a decree for his wages.

Wages decreed, $103 12.

N. D. Supreme Court.

[November General Term, Eighth District.]

[Before the Four Judges.]

BENJAMIN DOLE, Plaintiff in Error, v. CHARLES R. GOLD, Defendant in Error.

PROMISSOR Y NOTE-WHAT A SUFFICIENT NOTICE TO CHARGE EN

DORSER.

A notice to the endorser of a promissory note must be sufficient on its face to charge him as the endorser, and cannot be aided or helped out by extrinsic facts.

Such notice must, in such language as the holder may choose to adopt, inform the endorser of the fact that the note has been duly presented for payment, and that the maker has refused or neglected to pay it.

ERROR to the Recorder's Court of the city of Buffalo, to review a judgment of that court affirming a judgment of a Justices' court.

The action before the justice was for the recovery of the money due on a promissory note made by Andrew Cole, payable to the order of Benjamin Dole and endorsed by him. Dole being served with process, appeared before the justice and plead the general issue. On the trial before the justice the plaintiff produced the note, proved the making and endorsing thereof, a demand of payment of the maker in due time, his refusal to pay, and that on the same day of the demand he caused a written notice to be served on Dole, the endorser, in the words following:

"Buffalo, Sept. 8th, 1847. "Dear Sir: A note of $22 50, made by Andrew Cole and payable to your order, and endorsed by you, is due this day, and has not

N. Y. Supreme Court.-Dole v. Gold.

been paid. You will therefore take notice that I am the owner and holder of said note, and look to you for the payment of the same. C. R. GOLD."

"Yours, &c.

And thereupon the plaintiff rested his case. The defendant, Dole, moved for a non-suit, on the ground that the notice was not sufficient to charge him as endorser; that is was defive in not stating that payment of the note had been demanded of the maker.

The justice refused the non-suit, and gave judgment for the plaintiff against Dole for the amount of the note, interest and costs. The judgment was taken to the Recorder's Court, by certiorari, and there affirmed. The judgment of the Recorder's Court is now brought here by writ of error. The only question made on the argument in this court, or presented by the case, relates to the sufficiency of the notice to the plaintiff in error, to charge him as endorser of the note made by Cole. W. H. Greene, for plaintiff in error.

C. H. S. Williams, for defendant in error.

March Term, 1849. MULLETT, J., now delivered the opinion of the court:-The conditional nature of the endorsee's contract is not denied in this case, nor is it denied that to make the endorser liable, the holder of the note must prove on the trial, that the payment of the note was properly demanded of the maker, and refused or neglected by him; or, in other words, that the note was dishonored by the maker, and that the requisite notice was given to the endorser. The demand and non-payment were sufficiently proved before the justice, and the only question for our consideration relates to the sufficiency of the notice to the endorser. The notice was a written notice subscribed by Gold, the holder of the note, addressed to the endorser, dated and served the day the note became due, and stated that the note, describing it, was due that day and had not been paid, and that the subscriber was the owner and holder of the note, and looked to the endorser for the payment of the same. This presents the question whether it was necessary that the notice should inform the endorser that payment of the note had been demanded of the maker. In this state, the sufficiency of the notice, when there is no dispute about the facts, is a question of law to be determined by the court. Vanhoesen v. Alstyne, 3 Wend. 75; The Bank of Utica v. Bender, 21 Wend. 643; Remer v. Downer, 23 Wend. 620; Ransom v. Mack, 2 Hill, 587; Spencer v. Bank of Salina, 3 Hill, 520.

These decisions are in accordance with the English doctrine on the subject, as it was asserted by Buller, Justice, in the case of Tindale v. Brown, decided in 1786, (1 T. R. 169,) and generally maintained by the King's Bench ever since. For the more recent English decisions on this subject, see the chancellor's references in the case of Remer v. Downer, above cited. The same principle is adopted in several of the States. In Massachusetts, in the case of Gilbert v. Dennis,

N. Y. Supreme Court.-Dole v. Gold.

3 Met. 495; Pinkham v. Macy, 9 Met. R. 374. In Pennsylvania, in the case of Beanzer v. Wightman, 7 Watts & Sergt. 261. In Michigan, in the case of Plate v. Drake, 1 Doug. Mich. Rep. 296, and by the Supreme Court of the United States, in the cases of The Bank of Columbia v. Lawrence, 1 Peters' Rep. 578, Thompson, J., 582; Rhet v. Poe, 2 Howard's U.S. Rep. 457, Daniels, J., 480 to 481; Harris v. Robinson, 4 How. U. S. Rep. 336, Woodbury, J., 344 to 345.

This being the settled law, the question of the sufficiency of the notice cannot be avoided by the court, under any pretence of submitting it to a jury to say, whether the party could understand what was meant, or whether he was misled by it or not. It is true, there may be many facts connected with the question of proper diligence in giving notice, such as the residence of the parties, the course of communication between them, &c., which must be submitted to a jury, but the notice, however and whenever sent, must speak for itself. In a case like the one under consideration, there are no extrinsic facts for the jury to find, the notice was properly sent, and shows upon its face what information it gave the endorser, and the court must decide whether it is sufficient or not. The necessity of giving notice to the endorser, grows out of the legal construction of the obligation which he assumes by endorsing the note. Mr. Justice Story, in his Treatise on Promissory Notes, sec. 135, says: "The endorsement of a note, in contemplation of law, amounts to a contract on the part of the endorser, with and in favor of the endorsee, and every subsequent holder to whom the note is transferred. First. That the instrument itself and the antecedent signatures thereon are genuine. Second. That he, the endorser, has a good title to the instrument. Third. That he is competent to bind himself by the endorsement as endorser. Fourth. That the maker is competent to bind himself to the payment, and will, upon due presentment of the note, pay it at maturity. Fifth. That, if, when duly presented, it is not paid by the maker, he, the endorser, will, upon due and reasonable notice given to him of the dishonor, pay the same to the endorsee or holder. The terms of this contract impose upon the endorsee or holder an obligation to make an attempt to obtain payment from the maker, and to give notice of such attempt and its failure to the endorser, and the performance of this obligation is a condition precedent to the right of the holder to resort to the endorser for the payment of the note. Until the performance of this obligation on the part of the holder, the endorser's liability is contingent upon the performance, it becomes absolute. One part of this condition precedent to be performed by the holder is the giving of the notice to the endorser. What must this notice contain? The requisites of the notice, that is, what information it must give to the endorser, must be prescribed by law, though the law requires no particular form of words in which that information must be conveyed. Story on Bills of Exchange, § 390; Story on Promissory Notes, § 348.

In his Commentaries on the Law of Promissory Notes, sec. 348, Mr. Justice Story says: "It is indispensable that the notice should

N. Y. Supreme Court.-Dole v. Gold.

either expressly or by just and natural implication, contain in substance the following requisites:

"1st. A true description of the note, so as to ascertain its identity. "2d. An assertion that it has been duly presented to the maker at its maturity, and dishonored.

"3d. That the holder or other person giving the notice, looks to the person to whom the notice is given, for payment and indemnity."

The second requisite is the only one in question in this case. The counsel for the defendant in error, insists that it is not necessary in the notice to the endorser, to inform him that payment of the note had been demanded of the maker, and relies principally upon the case of Mills v. The Bank of the United States, 11 Wheat. Rep. 431, to sustain that proposition. It is true, that some of the language of the learned judge, who delivered the opinion of the court in the case of Mills v. The Bank of the United States, disconnected from the subject matter of the case, would seem to favor the assumption of the defendant in error, but applied to the case then under consideration, the opinion merely decides that a notice to an endorser of a note, describing it as payable at a particular bank, on a certain day, and endorsed by him, had been protested for non-payment, was not fatally defective by reason of its not stating that payment was demanded at the bank when the note became due. See Ch. J. Shaw's review of the opinion in the case of Mills v. The Bank of the United States, 3 Met. Rep. 495.

But whatever may be considered as decided in the case of Mills v. The Bank of the United States, the opinion of the court was delivered by Mr. Justice Story, in February, 1826, and before the particular requisites of a notice to an endorser had been a subject of much judicial discussion. About this time the particular point now under consideration, became a subject of extensive litigation in the English courts, which occupied their attention for several years. In 1825, it was decided by the King's Bench, in Hartly v. Case, Abbott, C. J., delivering the opinion, that a notice from the holder of a bill of exchange to the endorser, in the following form, "I am desired. to apply to you for the payment of the sum of £150, due to myself on a draft drawn by Mr. S. on Mr. Case, which I hope you will, on receipt, discharge, to prevent the necessity of law proceedings, which otherwise will immediately take place," was insufficient to charge the endorser, because it did not apprize the party of the fact of dishonor. The C. J. says, that no particular form of words is necessary in such a notice, but the language used must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor. 4 Barn. & Cres. 339; S. C. Dowling & Ryland's Rep. 505; 10 Eng. Com. Law Rep. 350. About the same time the great case of Solarte v. Palmer, originated in the common pleas. Lord Tenterden, at nisi-pruis, instructed the jury that a letter from the attorney of the holders, addressed to the endorsers of a bill of exchange, in the following words, "Gentlemen-A bill for £683, drawn by Mr. Joseph Keats upon Messrs. Daniel, Jones & Co., and bearing your endorsement, has been put

N. Y. Supreme Court.-Dole v. Gold.

into our hands by the holders, (naming them,) with directions to take legal measures for the recovery thereof, unless immediately paid to yours, &c.," was insufficient to charge the endorser, to which direction the plaintiff excepted. The bill of exceptions stated that the C. J. did then and there declare and deliver his opinion to the jury, that the letter was not a sufficient notice of the dishonor and non-payment of the bill of exchange to entitle the plaintiffs to maintain their action against the defendants, and that the jury thereupon gave a verdict for the defendants. The court, upon the bill of exceptions, having overruled the decision of the chief justice, and given judgment for the plaintiff, this judgment was taken into the Court of Exchequer Chamber by writ of error; and in A. D. 1231, was reversed by the unanimous concurrence of all the members of the court. The leading opinion on the reversal was delivered by Tindal, C. J., who sustained the nisi-prius decision of Lord Tenterden, and, in his opinion, says-" The notice should at least inform the party to whom it is addressed, either in express terms or by necessary implication, that the bill has been dishonored. In this notice we think no such information is conveyed in terms, or is to be necessarily implied from its contents. It is perfectly consistent with this notice, that the bill has never been presented at all." 7 Bingham, 350; 20 Eng. Com. Law Rep. 226.

This case was appealed to the House of Lords, and decided there in 1834, upon which the judgment of the Court of Exchequer Chamber was affirmed. Park, J., delivering the leading opinion, says "The letter of the plaintiff's attorneys did not amount to a notice of the dishonor of the bill, as such notice ought in express terms, or by necessary implication, to convey full information. that the bill had been dishonored." Lord Brougham, C., concurred in the opinion, on the authority of Hartly v. Case, the unanimous decision of the Exchequer Chamber, and the 5th edition of Bayly on Bills, and remarked, "that the case was too clear for an appeal." The decision of the House of Lords was concurred in by all the judges present, to wit: Williams, J., Bolland, B., Alderson, B., Patteson, J., Taunton, J., Littledale, J., Vaughan, J., and Gaselee, J. 1 Bing. N. C. 194; 27 Eng. Com. Law Rep. 351.

The next case in point of time is that of Boulton v. Welch, decided in the Common Pleas, in 1837. Park, J., at nisi-pruis, had decided that a notice from the holder to the endorser of a promissory note, describing the note by its amount, the maker's name, its date and the time of its payment, and stating that it was endorsed by him, and that "it became due yesterday, and was returned to him (the holder) unpaid," and requesting payment forthwith, was not sufficient. A verdict, however, was taken for the plaintiff, with leave to the defendant to move for a nonsuit. On the hearing of the rule nisi for a nonsuit, Tindale, C. J., said—" It did not appear from the letter, (notice,) by necessary inference, that the note had been dishonored. The rule requires that either expressly or by necessary inference, the notice should disclose that the bill or note had been dishonored; here the no