The Cayuga County Bank v. Warden and Griswold.
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was second indorser. The notice upon its face was addressed to "N. Williams, cashier," and informed that person that "James Young's note indorsed by you," was protested, etc. The letter containing the notice was, upon the outside, addressed to Remer, at his place of residence.

The Court of Errors assumed that the notice was not addressed to the indorser, but to Williams. The chancellor accordingly remarks "that Remer could not have supposed that James Young's note for a larger amount, indorsed by Williams, to whom the notice was addressed, was the one intended."

*27] *As the chancellor viewed the facts, every part of the notice, as to the note in controversy, was false; false as to the amount, the indorser, and the address; and Remer could only suppose, as the opinion states, "that the letter was wrongly directed upon the back by mistake."

The Supreme Court, on the contrary, assumed, under the finding of the jury, that the notice was addressed to Remer. On this supposition Remer was informed that James Young's note payable at, etc., indorsed by him, was protested, etc.

Judge Bronson accordingly remarks, that the note was undescribed as to the amount; but in all other respects "[which included the indorsement],"was accurately described, and was the only note in the bank with his name upon it."

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the indorsement is prima facie evidence in favor of the indorser against the maker, of money lent, and money had and received. (7 Barb. 15, and cases.) It is, in truth, evidence of an undertaking to pay money upon a consideration received by the indorser. The plaintiff must prove the contract, and a breach, before the indorsement and note become evidence, and not merely an acknowledgment of the receipt of money.

The nature of the consideration has no influence upon the contract, and upon principle should have none upon the remedy by which it is enforced.

When, therefore, the courts held that the contract was evidence at all, to authorize a recovery under the money counts, to have been consistent, they should not have allowed the action to be defeated by any evidence that would not be a bar to a suit upon the contract.

The rule may be otherwise in England, but in this State, in Hughes v. Wheeler (8 Cow. 84), it was adjudged that the note was conclusive evidence of a pecuniary consideration, so far as respects the remedy under the money counts. Ten years afterward, in Smith v. Van Loan (16 Wend, 660), the decision was affirmed, and the doctrine applied, where the consideration of the note was work and labor. Such has been the law as settled for twenty-five years. In Butler v. Rawson (1 Denio, 107), the same doctrine was recognized, but an exception made in cases where the suretyship of one of the makers appeared upon the face of the note. This case has been followed in Balcom v. Woodruff (7 Barb. 15).

The judgment must be affirmed

The difference between the courts was one of construction. The Supreme Court, acting upon the verdict, which found that the indorser was not misled, adopted the address upon the back of the letter as part of Whether these exceptions are consistent the notice. The Court of Errors, I think, with principle is a question not necessary correctly construed the notice as it read to be decided at this time. Hughes v. upon its face, without reference to the out-Wheeler settled this question as one of [*29 side direction. Had the notice in the body pleading, and we think the decision ought of it been addressed to Remer, instead of not to be disturbed. Williams, it would have been in substance this case; and the notice hence would have been held sufficient, as is manifest from the reasoning of the chancellor. There is not an intimation in the opinion to the contrary. Again, it was objected upon the trial that the first count of the declaration was bad as containing a cause of action not authorized by the plaintiffs' charter, and that the amendment allowed upon the trial was without terms, and not within the spirit of the 149th section of the Code of 1848. The judge directed that the objectionable parts of the count should be stricken out without costs to either party. This was the effect of the decision. An amendment without costs we think is an amendment "upon such terms as may be proper," within the meaning of the section which refers the terms to the discretion of the court.

*28] *Another point made by the defendant is that the note was not evidence to sustain a recovery upon the money counts, as no money was paid to, or received by, the defendants, as the consideration of their indorsement.

Paige, J. The facts of this case in regard to the notice to the indorsers of the dishonor of the note in question are substantially the same as they appeared on the first trial of the cause. The decision of this court, therefore (reported in 1 Comst. 413), pronounced on the former appeal, puts at rest the questions as to the sufficiency of the notice to the indorsers, of the non-payment of the note on its presentment to the drawer. This court, on the former appeal, held that the written notice of dishonor of the note, in connection with the accessory fact that this was the only note in the bank drawn by S. Warden and indorsed by the defendants, was sufficient to convey information to the indorsers of the identity of the note, and that payment of it had, on due presentment, been neglected or refused by the maker. It was also, on that occasion, held by the court that the notice was not defective, because it described the indorsement of the note as an individual, instead of a joint indorsement, or because it did not expressly

The authorities referred to by the defend-state that payment of the note had been de ants' counsel, establish the principle that ❘manded or refused. It was held that the

The Cayuga County Bank v. Warden and Griswold.

statement in the notice that the note had been protested for non-payment necessarily implied that payment of the note had been demanded and refused.

It is now regarded as definitely settled, that the sufficiency of the notice of the dishonor of a note, where there is no dispute about the facts, is a question of law for the determination of the court, and not of fact for the decision of the jury. (23 Wend. 625, 626; 2 Denio, 594, 595.)

The only new question presented on this

appeal is, whether the note was admissible in evidence, under the money counts. In Hughes v. Wheeler (8 Cow. 77), a majority of the Supreme Court decided that a promissory note was conclusive evidence of money had and received by the maker to the use of the payee. In Smith v. Van Loan *30] (16 Wend. 659), which *was a suit by the transferee of a note against the maker, the court held that the note could be read in | evidence, under the money counts, and that proof that the note was not in fact given for money, but for work and labor, could not change the form of the remedy. The same rule was again laid down by Chief Justice Bronson, in Butler v. Rawson (1 Denio, 107). Upon the authority of these cases, the note in question must be regarded as conclusive evidence of money lent and advanced to the defendants by the plaintiffs; and proof that the defendants were mere accommodation indorsers, and that in fact no money was received by them, cannot alter the form of the remedy. The defendants by their indorsement acknowledged that they have in their hands money lent and advanced to them by the plaintiffs, and they by such indorsement undertake to repay it to the plaintiffs, or to any other party to whom the note may be transferred. The statute makes the indorsement evidence per se of money lent to the defendants. (12 Johns. 93, 94: 1 R. S. 768, § 1; 10 Wend. 344, 345; 3 Hill, 54; 6 Barb. 446.) The question is a mere question of pleading, and the defendants ought not to be allowed, by showing that no money was in fact lent and advanced to them, to change the form of the remedy on the note against them. The case of Page's Administrators v. The Bank of Alexandria (7 Wheat. 35), has never been followed by the courts of this State.

I am also inclined to believe that the objection, that the note was not admissible in evidence under the money counts, was not properly taken on the trial. The objection was, that the note could not be read in evidence under the first count as amended. This objection does not state why it could not be read in evidence; whether on the ground that the notice to the indorsers was defective, or on the ground of some other defect in the evidence, or on the ground that the declaration was not adapted to the cause of action. If the defendants had specifically objected that under the testimony the note was not evidence of money lent and advanced to the defendants by the plaintiffs, and was, therefore, not admissible under the money counts, the court and

*opposite counsel would have under- [*31 stood the precise question intended to be raised, and the latter might, perhaps, have obviated the objection by further proof, or he might have applied for an amendment of the declaration. (2 Hill, 603, 604; 7 id. | 355; S. C., 7 Barb. 13.)

I am of opinion that the judgment of the Supreme Court ought to be affirmed.

Ruggles, Ch. J., and Jewett and Grey, JJ., concurred in the foregoing opinions.

Foot, J. (dissenting). When this cause was before the court on the former occasion, the sufficiency of the notice of protest was passed upon, and it is not now an open question; still, as the counsel for the appellant on the present argument reviewed, with great zeal, ability and learning, the reasoning of the learned judge who delivered the opinion of the court on that occasion, it may be useful to mention my understanding of the true grounds of that decision. Assuming, as the learned judge rightly does, that it is the duty of the court, when the facts are undisputed, to determine the sufficiency of the notice, he proceeds to examine it in connection with certain facts which are termed accessory facts, and concludes that it is sufficient; and as the main reason of the rule, which requires notice to the indorser, is the reception of information by him of the dishonor of the paper, that he may thereby take measures for his indemnity, the learned judge asks, in view of the contents of the notice and what are termed the accessory facts, "Who can doubt but that this notice conveyed to the minds of the defendants" [appellants] "the information that this identical note had been dishonored?" Now I do not understand by this remark that the judge intended to adopt, as a test of the sufficiency of a notice of protest, the question of fact, whether such notice does or does not in every case communicate the requisite information to the indorser. He evidently intended it to be what it really is, a mere illustration of the justice of the principle of his *decision [*32 when applied to this case. And that principle is as well established and as frequently applied as any other in the law. It is, that when a written instrument is to be construed, the court must take into consideration the accompanying facts and circumstances. In the present case, the true meaning of the written notice was to be ascertained. perform that duty intelligently and justly, the court adverted, as by this rule of law it was clearly bound to do, to the accompanying facts and circumstances, called by the learned judge “accessory facts.”

To

There is another question in this case, which has not been decided by this court.

The action is assumpsit by indorsee against indorsers, and the declaration contains the common money counts. The proof is full and clear that the appellants never received from the respondents any money for or by reason of the note in suit; and the presumption of law arising from the note is fully rebutted.

Norton & Norton v. Coons.

Norton & Norton v. Coons.

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informed by Schryver & Aikin, when he signed the note, that Miss Eldridge required the security of his name.

The preliminary agreement between the lender and the borrowers contemplated the signatures, therefore, of both plaintiffs and defendant, as sureties for a common principal. Their signatures on the written instrument is.in conformity with this understanding. No agreement whatever was made between the sureties.

We are referred to the case of Craythorne v. Swinburne (14 Vesey, 169), as authority for receiving parol evidence of the terms upon which the defendant signed the note. That was a case in which the instrument then under consideration very clearly regulated the terms of the suretyship, but parol evidence was offered and received. It was, *41] however, evidence of *extrinsic facts, and was, as remarked by Lord Eldon in that case, in support and not in contradiction of the written instrument. No doubt is entertained that parol evidence of collateral facts is admissible to rebut the presumption arising from the face of the instrument, that all are principals and equally bound to contribute, Harris v. Brooks, 21 Pick. 195.) The defendant's proposition goes further. After proving for whose benefit the note was made and who received the funds, and thus establishing the relation of principal and surety, he proposes to show that he was not co-surety, not by extrinsic facts, but by a parol agreement varying the operation of his contract as defined by law and subscribed to by him, and thus, in effect, made his written agreement. Within my means of research, I have not been able to find a case going that length, and I apprehend none exists. The law in this case having defined the rights and obligations of the sureties as between them-sible. selves, their signatures establish their assent to it, and the contract is thus made as clear and certain as if the whole had been written. It is the highest and best evidence of their agreement, and the reason of the rule that excludes parol evidence from being received to vary the operation of a contract, wholly written by the parties, applies with all its force to this case.

The mischiefs and frauds to be guarded against in the one case are as great as those in the other. Although the facts in this case are not analogous to those in the case of Thompson v. Ketcham (8 Johns. 189), yet the principle which should govern this is stated there by Kent, Ch. J., as a principle of general application, and that is, where the operation of a contract is clearly settled by a general principle of law, it is to be taken to be the true sense of the contracting parties, and it is against the general rule to vary the operation of a writing by parol. (See Hall v. Newcomb, 7 Hill, 416.)

It will not be denied that the operation of the contract in this case was clearly settled by a principle of law. The defendant, by subscribing his assent to it, has so far made it his written contract as to be prohibited *42] from overthrowing it by a *parol agreement made at the same time. The judgment of the Supreme Court should be affirmed.

Gardiner, J. It appears from the offer of the defendants, that when the negotiation was made with Miss Eldridge, she required that the note which she was to receive for the money loaned by her to Schryver & Aikin should be joint and several, and undersigned both by the Nortons and Coons, the defendant, as sureties. That Coons was

The representation of Schryver & Aikin to Coons was, that they wanted him to go on the note, that he ran no risk at all, as the Nortons were abundantly responsible. That his name was wanted to satisfy Miss Eldridge that the note was good; and upon these considerations he put his name on, saying it was something he would not do for anybody, but as he had dealt a great deal with us, and if he ran no risk, he would do it. Schryver & Aikin did not pretend to speak for the Nortons, or to possess any authority to bind them by any agreement or understanding whatever. They made no agreement with Coons which the Nortons could ratify. The most that could be inferred by Coons from what was said was, that in the opinion of Schryver & Aikin, he ran no risk at all, because the Nortons were abundantly respon

It seems to me that such evidence is very far from rebutting the clear evidence of cosuretyship, established by the other testimony, and that the judgment should be affirmed.

Ruggles, Ch. J., and Jewett and MeCoun, JJ., concurred.

*Foot, J. (dissenting). The legal [*43 propositions stated by Bronson, Ch. J., in delivering the opinion of the Supreme Court, when this case was before it on a motion for a new trial (3 Denio, 132), are all, in my opinion, correct, with one exception. That exception is his position that the appellant could not avail himself of his qualified undertaking as a surety, because such qualification did not appear in the form of his undertaking. In other words, because the form of his signature to the note indicated co-suretyship with the respondents, he could not show the real character of his engagement, viz.: that he was surety for those whose names were before his on the note. For this position, the learned chief justice cited no authority, while he cited numerous cases to sustain his other positions.

Both reason and authority oblige me to adopt a different conclusion. The form of the undertaking indicates, if it is at all a guide, that the three parties to the note were all principals; and it may as truly and forcibly be said that the form of the undertaking shall prevent the respondents from showing that they were sureties, as that it shall prevent the appellant from showing the true character of his suretyship. But neither the one or the other is sound, for the obvious reason that the form of the undertaking is consistent with both. Hence

Coleman v. Wade and Van Amburgh.