Opinion
September Term, 1848
John Porter, for the plaintiffs in error. W.T. Worden, for the defendants in error.
There is no question but that due presentment for payment and notice of non-payment to the endorsers of a promissory note, are conditions precedent to the liability of the endorsers, and that the notice may be either written or verbal. ( Cuyler v. Stevens, 4 Wend. 566.) Such presentment of the note in question was made and notice of non-payment in the form shown by the evidence given. The only material question then is, whether that notice is sufficient. It is well settled that there is no precise form of words necessary to be used in giving notice; it is sufficient, if the language used is such, as, in express terms or by necessary implication, to convey notice to the endorsers of the identity of the note, and that payment of it on due presentment has been neglected or refused by the maker.
The fact which was necessary to be established by the plaintiff is, that the defendants had due notice of the dishonor of the note in question. The notice, such as it is, was given at the precise time and place required by law. The evidence shows that this note was given for a balance due upon and in renewal of a former note payable at the same bank on the 11th of November, 1844, made by S. Warden and endorsed by the defendants, to whose order it was made payable. But it is contended that the notice merely informs the defendants of the non-payment of a note drawn and endorsed respectively by the defendants for $300, and not of a note for $600, endorsed by the defendants jointly. Concede that such variance or misdescription exists. It is well settled in accordance with good sense, that an immaterial variance in the notice will not vitiate it. The variance must be such as, that under the circumstances of the case, the notice conveys no sufficient knowledge to the endorsers of the identity of the particular note which has been dishonored. ( Mills v. The Bank of the U.S. 11 Wheat. 431; Bank of Alexandria v. Swann, 9 Peters, 33.)
Now having the accessary facts, namely, that this was the only note in this bank drawn by S. Warden and endorsed by the defendants, and the intimation conveyed by the figures "$600" upon the margin of the notice, who can doubt but that this notice conveyed to the minds of the defendants the information that this identical note had been dishonored, although it misdescribed the note as it respects the sum for which it was made in the body of it? The defendants knowing the facts stated, on the receipt of this notice could not, as it seems to me, fail to be apprized by it that this particular note had been dishonored. It was said on the argument, that the notice, to be effectual, must be perfect on its face, to carry the information to the endorser of the non-payment of the note, and that it could not be aided by accessary facts. The cases of Shelton v. Braithwaite, (7 Mees. Welsb. 436,) and Stockham v. Parr, (11 id. 809,) are very much in point to show that a notice, defective on its face, may be aided by such facts, and that it is proper to consider them in deciding the question of the sufficiency of such notice.
It was also contended that the notice is fatally defective and insufficient to charge the defendants as endorsers of the note in question, on the ground that the notice describes the endorsement of the note as an individual and not a joint endorsement. The note is drawn payable "to the order of F.L. Griswold and E.A. Warden," and is endorsed by the payees respectively. In such case the law requires notice to be given to each of them, as notice to one will not, as it will in the case of partners, be deemed notice to the other. ( Willis v. Green, 5 Hill, 232.)
The objection rests upon the ground of misdescription of the note in question; that the receipt of this notice did not and was not calculated to inform the defendants of the non-payment of this note; that to effect such object this notice should have described the note as having been endorsed by both defendants. It seems to me that to hold in conformity with this objection would be to sacrifice substance to the merest technical formality; and that it is quite impossible not to see that under the circumstances of this case the notice fully informed the defendants that this particular note had been dishonored.
Another objection to the notice is that it does not state that payment of this note was ever demanded or that it was refused, nor when nor where such demand was made and payment refused. The notice is dated "Cayuga County Bank, Auburn, May 3, 1845," and states that S. Warden's note for $300, payable at this bank, endorsed, c. "was this evening protested for non-payment, and the holders look to you for the payment thereof."
The case of Mills v. The Bank of U.S. (11 Wheat. 431,) shows that it need not be stated in the notice that a demand of payment was made; that it is sufficient to state the fact of non-payment of the note, which the notice in this case alleges, as it states that the note was protested for non-payment. Whether the demand was duly and regularly made is matter of evidence to be given at the trial; and to the same effect is the case of Stocken v. Collins, (9 Carr. Payne, 653.) I am of opinion that the notice under the circumstances of this case was sufficient, and that the court below erred in its judgment; that the judgment should be reversed with a venire de novo by that court, and that the costs should abide the event.
Judgment reversed.