Opinion
December Term, 1849.
1. In an action upon a bill of exchange the evidence of a witness, who cannot swear to the handwriting of either party of the firm in whose name the bill was drawn, but who testifies that, in his opinion, the handwriting was the same as that of many notes he had presented to the firm and which had been paid by them, was competent, and it was proper to leave such evidence to the jury, to be judged of by them.
2. By the law merchant, a protest of a bill by a public notary is, in itself, evidence. And by our statute, Rev. St., ch. 13, sec. 10, such protest is prima facie evidence.
3. Where a bill has been drawn by A upon B, in favor of C, and is protested for nonpayment, the acceptance by C of another bill from B, unless it is expressly understood that this is to be a satisfaction of the debt due by A, does not debar C of his action against A upon the original bill, provided the bill of B is dishonored. But it is necessary for C, in his suit upon the original bill, to show that he used proper diligence on the second bill and could not obtain payment.
APPEAL from the Superior Court of Law of CHOWAN, at Spring Term, 1849, Manly, J., presiding.
The action is assumpsit by the payee of a bill of exchange for $500, purporting to be drawn at Edenton in this State by George Price Co., on Thomas McAdam Co., of New York, on 11 November, 1844, and payable at sight, and it was tried on non assumpsit, and satisfaction pleaded.
The firm of George Price Co. was composed of George Price, the defendant, and one Daniel Messmore, and, at and before the drawing of the bill, did business in Edenton. To establish the drawing of the bill, a witness for the plaintiff (386) deposed that he knew the handwriting of the defendant, and that the signature to the bill was not written by him; that he had never seen the other partner, Messmore, write, and he could not say whether he signed the bill or not; but that he was a constable in Edenton while George Price Co. did business there, and had frequently received for collection notes in their name, which he presented at their place of business, and that they were paid by the firm; and that the bill sued on and those notes were in the same handwriting. This evidence was objected to on the part of the defendant, but was received.
The plaintiff further offered in evidence a protest of the bill, made 16 November, 1844, for nonpayment, purporting to be under the signature and seal of a notary in New York. On the part of the defendant it was insisted that it could not be received without proof of the handwriting and official character of the person professing to be a notary. But the court allowed it to be read to the jury.
On the part of the defendant evidence was then given that the plaintiff lived in Norfolk, in Virginia, and cashed the bill there at the request of one McAdam of that place, who carried it to him for that purpose; and that, upon the return of the bill protested and information thereof to McAdam, he offered the plaintiff a bill drawn by "McAdam Brother," of Norfolk, on "Thomas McAdam Co.," of New York, and payable to one Gray, for the amount then due on the bill sued on, and endorsed by Gray to the plaintiff, and that the plaintiff received the same. Thereupon the plaintiff gave evidence that the bill last mentioned was not paid at maturity, but protested for nonpayment; and that, upon the return of it, the plaintiff recovered judgment thereon against Gray, but was unable to obtain satisfaction thereof. Upon that evidence the counsel for the defendant prayed an instruction to the jury that the second bill, so received by the plaintiff, was a satisfaction of (387) that sued on in this action, and that the drawers were hereby discharged. But the court refused to give the instruction, and directed the jury that accepting the second bill would not amount to a payment or satisfaction of the bill sued on, unless it was given and received upon an agreement that it should be a satisfaction.
After a verdict and judgment for the plaintiff, the defendant appealed.
Burgwyn and A. Moore for plaintiff.
Heath for defendant.
Upon the point as to the proof of the handwriting, the case seems to be one of that class in which the proof has been allowed to come from a witness whose knowledge of the writing was derived from papers purporting to be made by the party, which were established in the mind of the witness to be genuine by the fact they were so treated by the party from time to time by paying them. Pope v. Askew, 23 N.C. 16, and S. v. Harris, 27 N.C. 287. It is of no consequence that the witness had no such knowledge of the writing of the partner, Messmore, derived in any manner as would enable him to say with precision that he believed that Messmore personally put the name of the firm to the bill; for, whether that person, or any other duly authorized, signed the bill, the firm was in law the drawer, and the witness states his belief that, as far as could be judged from the handwriting, this bill was signed by the same person who habitually made notes on the house of George Price Co., which that firm habitually took up from the witness. The substance of the testimony is that whoever generally gave securities in the name of George Price Co. — whether one of the partners or a clerk — must have drawn the bill in question. That, we think, was sufficient to let the bill (388) go to the jury, whose province it was to determine how much credit ought to be allowed to the judgment and integrity of the witness.
By the law merchant a notarial protest is, in itself, evidence. Chitty on Bills, 405. The doctrine rests upon usage and the universal convenience of the commercial world. With us, however, it is established by statute, which extends to all kinds of bills, and makes the protest prima facie evidence, against the drawers, of a demand on the drawee and notice to the drawer. Rev. St., ch. 13, sec. 10.
The Court concurs also in the instructions to the jury. The note or bill of a third person taken by a creditor may, under circumstances, be a satisfaction absolutely; that is, when so intended. If it be passed at the time of making a purchase or otherwise contracting a debt, there seems to be a natural presumption of an intention that it should be in discharge of the debt; and that appears to be the general effect of the adjudged cases. But, at the same time, the current of the authorities, in the case of a pre-existing debt, is the other way, establishing that the discharge of such a debt is not presumed from the creditor's accepting a note or bill on another merely, but there must be an agreement to that effect, either express or to be inferred plainly from the circumstances and conduct of the parties. It is not necessary to refer to particular adjudications, as they are numerous, and the doctrine established. Most of the cases are collected in the note of the American decisions appended to Cumber v. Wayne, in the American edition of 1 Smith Leading Cases, 146. There is nothing here to authorize an inference of an unconditional agreement for the extinguishment of the prior debt by the second bill. The contrary presumption is strong, from the circumstance that, when the plaintiff took the second, he still kept the first bill: as it shows he did not mean to (389) give up any name until he should get actual satisfaction. It was, indeed, incumbent on the plaintiff to show on the trial of this suit that he used proper diligence on the second bill and could not obtain payment. But that he did. It was, however, argued that the rule applies only when the creditor receives a second bill or note from some one who was liable for the original debt, which was said not to be the case here, as McAdam, from whom the plaintiff received the bills, was not a party to either. That person is not stated not to be one of those bearing that name, who composed the firms in Norfolk and New York; and from the transaction one would take it that he was of those firms and in that way connected with the bills, and probably, also, as agent for George Price Co., for whose accommodation it would seem the bill might have been drawn, and discounted, as it was made payable to the plaintiff, not upon any previous transaction, but to be discounted simply. But, if McAdam was really a mere stranger and only the agent of George Price Co. to procure the discount, the case is stronger against the defendant; for, then, the drawers cannot avail themselves of his act, being that of a stranger, as a satisfaction of their debt. Clow v. Borst, 6 John., 37.
The counsel for the defendant further insists that the protest was premature, inasmuch as the bill was entitled to grace; and yet it does not appear that it had been presented before 16 November — the day of the protest for nonpayment. But this point is not taken in the exception, and therefore cannot be taken here. It cannot be told that the plaintiff did not show by other evidence a previous presentment of the bill, or that in New York sight bills are not entitled to days of grace, as, according to our impression, such is the rule here.
PER CURIAM. Judgment affirmed.
Cited: McKonkey v. Gaylord, 46 N.C. 97; Currie v. Kennedy, 78 N.C. 93; Tuttle v. Rainey, 98 N.C. 516; Buggy Co. v. Dukes, 140 N.C. 396.
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