Opinion
November Term, 1899.
Crosby Palmer and Wagner Fisher, for the appellants.
C.L. Andrus, for the respondent.
The action is upon a promissory note held by the plaintiff as executrix of the last will and testament of John E. Bush, deceased, the original holder thereof. The note is in these words:
"HOBART, N.Y., July 29 th, 1890.
"For value received, we promise to pay to the order of William Gilmore, A.G. Silliman, Clayton Weeks and J. Brazee two thousand dollars with interest as follows: With interest from the date hereof on the first day of October, 1890. Then the annual interest on all unpaid sums on the first day of October in each and every year for four years. Then all unpaid principal with interest on the first day of October five years from October first, 1890. The payors have the privilege of paying the whole or any part of the principal sum at any time they may desire.
"Payable at the National Bank of Stamford.
"W. GILMORE, President.
"D.C. SHARPE, Secretary of the Hobart Agricultural Horse and Cattle Show Association."
Indorsed, "WM. GILMORE, A.G. SILLIMAN, CLAYTON WEEKS, J.O. BRAZEE.
Brazee does not defend. The appellants allege as a defense that the note is not an individual note, and that the plaintiff's testator, who died after the trial, failed to make due protest thereof upon default in payment.
Upon its face, without extrinsic evidence, the note is the individual note of the two makers. No reference is made in the body of the note to the corporation as a promisor, and the addition after the signature W. Gilmore, of the word "President," and after the signature of D.C. Sharpe, of the word "Secretary," followed by the words "of the Hobart Agricultural Horse and Cattle Show Association," does not convey any positive information that such an association, if it exists, is making the promise, while it does appear that the individual signers, who thus identify and describe themselves, do make the promise. ( De Witt v. Walton, 9 N.Y. 571; Casco Nat. Bank v. Clark, 139 id. 307; First Nat. Bank of Brooklyn v. Wallis, 84 Hun, 376.)
But the descriptive words following the signatures of the makers suggested the possibility that the Hobart Agricultural, Horse and Cattle Show Association might have intended thereby to make the promise, and, as the action is between the original parties to the note, it was competent for the defendants to show that there was a corporation of that name; that the makers were its president and secretary; that the corporation had the benefit of the consideration; that the makers were authorized to make the note as the act of the corporation, and intended to do so, and that the plaintiff's testator at the time he received the note knew these facts, and took the note with the understanding that the corporation was its maker. Such evidence would not contradict the note, but would give further and permissible meaning to the addendum to the signatures of the makers, and tend to show that such addendum was made as the corporate execution of the note, and was so understood by both parties to it. ( Bank of Genesee v. Patchin Bank, 19 N.Y. 312; Groves v. Acker, 85 Hun, 492; Hood v. Hallenbeck, 7 id. 362; Morrill v. C.T. Segar Manf. Co., 32 id. 543; Brockway v. Allen, 17 Wend. 40; Schmittler v. Simon, 114 N.Y. 176, 186.)
The evidence adduced for this purpose established all the facts last referred to, except whether the note was intended by the makers to be their individual note or the note of the corporation. Upon this question the plaintiff's testator adduced evidence tending to show that he distinctly refused to take the note of the corporation, but consented to take the individual note of the makers, and that thereupon the makers agreed to give their individual note, and accordingly gave the note in suit.
The jury found in answer to the specific question submitted to them by the trial court that such was the fact. We see no cause to disturb this finding as a matter of fact, and certainly none as a matter of law. As the defendants were entitled to adduce extrinsic evidence tending to show that the addendum to the signatures of the makers was the corporate expression of a corporate act, and was given and received as such, the plaintiff's testator was entitled to controvert such evidence and fortify his contradiction by affirmative evidence of its individual character. The result of the finding of the jury is, that the personal liability of the makers, indicated solely by its face, is not changed by the extrinsic evidence.
The next question is as to the liability of the individual indorsers. The note fell due October 1, 1895, and notice of protest was not served until October eighth following.
If Gilmore was an individual maker, no notice of demand and non-payment was necessary as to him. ( Hills v. Place, 48 N.Y. 520. ) The jury by their answers to specific questions submitted to them by the court found that Sharpe, one of the makers but not an indorser, at the request of Silliman and Weeks, two of the indorsers, and pursuant to a conversation with Alice Gilmore, one of the executors of the maker and indorser Gilmore, in which she said that she would do as the other indorsers did, she having been told of the proposed request, did on October 2, 1895, ask the plaintiff to wait three or four days, and tell him that if he would wait the note would be fixed up; and that the plaintiff refrained from demanding payment because of such request.
There is sufficient evidence to support this finding. Thus the indorsers, knowing that the note was within at least two days of maturity, and, we may assume, knowing that default would be made in its payment and the holder would take the necessary steps to fix their liability as indorsers, sent their messenger to him to ask him to wait three or four days, and to promise him that if he would so wait the note would be fixed up, and the holder consequently waited the three or four days, and fearing to wait longer, protested the note and served the indorsers with notice.
It is not a case where the indorsers can say that no notice was given. The question is whether the notice that was given was given promptly enough under the circumstances of this case. The holder had the right to infer from the request and promise of the indorsers that they waived, for at least three or four days, notice of demand and non-payment. As the indorsers in effect procured the delay, they cannot take advantage of it to the prejudice of the holder of the note. ( Sheldon v. Horton, 43 N.Y. 93; Leonard v. Gary, 10 Wend. 506; Bruce v. Lytle, 13 Barb. 163; Hunter v. Hook, 64 id. 475.)
The judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.