
    Henry L. Pierson & Samuel Hopkins v. Robert H. Boyd, impleaded with Robert Davis.
    (Before Campbell, Bosworth, & Emmet, J.J.)
    December 15th, 1852.
    February 26th, 1853.
    R. D. for a good consideration made his promissory note to C., and B. endorsed the same for his accommodation. C. before the note attained maturity, endorsed and transferred it for value to the plaintiff, who brought the action against R D. as maker, and B. as endorser.
    
      Reid, that whether C. was or was not liable to B. as first endorser, the latter was clearly liable as endorser to the plaintiffs, the facts that the note was transferred to them by C., and that they knew B. to be an accommodation endorser, constituting no defence.
    The sworn answer of the defendant B. admitted that he had received notice of the protest of the note, but alleged “ the want of sufficient knowledge to form a belief whether or not he received due notice of said protest.”
    
      Reid, that considering the answer as an affidavit, it was not such an affidavit as the statute requires in order to exclude the certificate of the Notary from being read in evidence.
    It was proved that a notice in proper form was served on the right day at B.’s place of business by placing it under the door, but the witness did not state at what hour the service was made, nor whether the room was open or closed.
    
      Reid, that although this proof, if standing alone, would have been unsatisfactory, yet that connecting it with the admissions in the defendant’s answer it was, as evidence of a due service, at least primd facie sufficient.
    Motion for a new trial on behalf of the defendant, Boyd.
    This action was brought against him and Davis, upon a note dated September 25th, 1850, at nine months, for $1,259, made by Davis, payable to the order of John Crum, and endorsed by Boyd first, and subsequently by Crum. The jury, under the direction of the Court, found a verdict for the plaintiffs, and assessed the damages at $1,396ta®t, with liberty to defendants to make a ease to be heard in the first instance at the General Term. The defendant Boyd now moves on a case made. From that it appears, that the complaint avers the making of the note by Davis, describing it, “ and that said defendant, Boyd, then and there endorsed the said note in writing. And that said defendant, Davis, then and there delivered the note with said endorsement thereon as aforesaid, to said John Crum, who afterwards, and before said note became due and payable, duly endorsed same in writing to plaintiffs.” It avers presentment at maturity, demand of payment, protest for non-payment, “ of all which said defendant, Boyd, had due notice.”
    The answer of Boyd controverts the allegations in the complaint, except that it admits he endorsed a note made by Davis, September 25th, 1850, and that he “ received notice of protest of such note, but denies having any knowledge or information sufficient to form a belief whether or not he received due notice of said protest, and he therefore controverts the allegation in that behalf.”
    It alleged an agreement made between Crum and Davis on the 5th of November, 1851, to give Davis six months’ time to pay the note, that Crum was authorized to so agree, and that thereby Boyd was discharged.
    It also sets up a failure of the consideration of the note, and that the plaintiffs held it as agents of Crum, and were collecting it for his benefit.
    The new matter of the answer was put at issue by a reply.
    The issues made by the answer of Davis need not be stated. The action was tried on the 26th of Hay, 1852.
    On the trial, the plaintiffs (the handwriting of Boyd being admitted, and that of Crum proved) read in evidence a note, and the endorsement thereon, as follows, viz.:—
    “ $1,250.” “ New York, September 25th, 1850.
    “ Nine months after date I promise to pay to the order of John Crum, twelve hundred and fifty dollars at the Ocean Bank, with interest, value received.
    (Signed) “ Robert Davis.”
    (Indorsed) “ Robt. H. Boyd,
    John Crum,
    Pierson & Co.”
    
      Plaintiff’s counsel then offered in evidence the notary’s certificate of the protest of the note and of service of notice on Boyd as endorser. To this Boyd’s counsel objected “ on the ground that such certificate was not evidence of the facts contained therein, the defendant Boyd having denied, under oath by his answer, receiving due notice of non-payment of said note. The objection was overruled by the Judge, and defendant’s counsel excepted thereto, and plaintiff’s' counsel read said certificate in evidence. The certificate showed the due presentment and protest of the note on the 28th of June, 1851, service of notice on Crum, and stated, “ that notice of protest was duly served on Robert H. Boyd, by leaving the same with a man attending at his place of business, on the next morning (30th June).” The counsel for plaintiff here rested, and the defendant’s counsel moved for a non-suit on the following grounds:—
    1st. That the plaintiffs having received the note from Crum, a prior endorser, could not recover from the defendant, Boyd, who is a subsequent endorser.
    2d. That if the plaintiffs could recover, they were bound to prove a consideration passing between them and said Crum, before they could recover against defendant Boyd, inasmuch as the receipt of the note by plaintiffs from the prior endorser was in itself notice that the defendant Boyd was not liable to the prior endorser.
    3d. That there was no evidence that defendants had received due notice of the non-payment of said note, or that the payment thereof had been duly demanded.
    The motion for non-suit was reserved for further consideration and argument at a general term.
    
      John Crum, being called as a witness on the part of the defendants, testified that he transferred the note to the plaintiffs in February, 1851, who paid for 'it in cash, the amount of it less the legal discount for the time it had to run. That the plaintiffs knew at the time all the facts in relation to the consideration of the note. That they were at the time owing him about $5,000, but when to become due was not stated.
    Being cross-examined by plaintiffs, testified as follows:— Since I parted with the note I have not had control of it; I received it from Davis and Evans; I had got no a machine for making files; Evans and Davis purchased from me two-thirds of that machine; about two or three months after that bargain was concluded, Davis came to me and said he had taken in a partner, and wished to know if I would sell my one-third for $7,500 ; I agreed to do so, and appointed a day for settlement; they agreed to give $5,000 in cash and balance in two notes, one for $1,250 made by Davis, endorsed by Boyd, and the other for like amount made by Evans and endorsed by Levi Brown; I conveyed to them the one-third and received $5,000 cash and the two notes, one of which, that endorsed by Boyd, is the note now sued on; I had not at that time a patent for said machine.
    The defendants then proved that an agreement, dated Nov. 5th, 1851, was entered into between Crum of one part, and Davis and Evans of the other, which recited that Crum had obtained letters patent, dated July 1st, 1851, and had assigned the same to Davis and Evans pursuant to the original agreement" between them, and by it they mortgaged to Crum the letters patent to secure the consideration of the sale and transfer to them. The mortgage was conditioned to be void, on payment, within six months from its date, of all moneys and notes then due, and on payment of all moneys not then due, as they should become due, agreed to be paid, and given, in satisfaction of their purchase. Crum testified that, at the date of the mortgage, he held “ notes of Davis and Evans for $4,500, and the note in suit. I can’t say that all or any of them were due at date of mortgage. I did not tell Davis that I had control of note in suit. Boyd’s name was on the note when I received it from Davis. It was for debt of Evans and Davis. Plaintiffs are still in my debt.” * * * “Inever had any authority to extend the time of payment of this note. I never extended the time of payment of this note.”
    The note is not mentioned, or referred to, in the mortgage by any terms which describe it.
    
      Robert Davis testified that, “ the note in suit was one of the notes referred to in said mortgage, as being past due, and is embraced by it.”
    The defendants having rested, the plaintiffs proved by ¥m. H. Tyler, that he was in. the employ of John D. Campbell, the notary who protested the note, and that he “ served the notice of protest of this note upon Bobert H. Boyd, on the 30th of June last (1851), by putting the same under the door of his place of business, Ho. 38, Courtlandt street,” and also stated the contents of the notice.
    The evidence being closed, a verdict was ordered for the plaintiffs as already stated.-
    
      B. D. Silliman, for defendant,
    Boyd, on the motion for a new trial, made the following points.
    I. Assuming that Boyd was an endorser, there was no proof, on the trial, of due demand and notice. 1. There was no proof of demand. The only testimony on the subject of demand was the certificate of the notary. That certificate was inadmissible, because the defendant Boyd had “ annexed to his plea an affidavit denying the fact of having received notice.” (2d Rev. Stat. (3d Ed.) p. 382. Garvey v. Fowler, 4 Sand. 665.) 2. If, under the circumstances, a notarial certificate had been admissible, the notary could only certify acts done by himself, or of which he had knowledge. He does not profess to have served the notice, and the testimony of plaintiff’s witness, Tyler, shows that he did not, and that the service was not made in the manner stated in the certificate. The certificate, therefore, does not prove notice. (Ketchum v. Barber, 4 Hill’s R., at p. 236.) 3. The witness, Tyler, shows what was the actual service. He shows that he (Tyler) served the notice, “ by putting it under the door of Boyd’s place of business.” This was not sufficient without also showing that it was so served within usual business hours. If left, out of those hours, such service would not be sufficient, unless some person in the employment of defendant were found there to receive it. (Story on Prom. Notes, § 315 and note.)
    II. Boyd must be regarded as second endorser. Crum, who was payee, and first endorser, had no right of action against Boyd on the note. Plaintiff received the note from Crum. The presumption of law therefore was, that Boyd was not liable—and plaintiff’s receiving the note, with notice, could not derive from Crum any title as against Boyd, which they knew that Crum had not. (Bishop v. Hayward, 4 Term, 470. Herrick v. Carman, 10 J. R. 224, 12 J. B. 159. Tillman v. Wheeler, 17 J. R. 326. Bradford v. Marten, 3 Sand. 647. Ellis v. Brown, 6 Barb. S. C. R. 282.) In addition to this legal presumption, plaintiff had actual knowledge of the facts.— (Crum’s testimony.)
    III. Plaintiffs not having received the note in the usual course of business, and without notice, it is open to all equities. There was no consideration. Crum received the note for a patent which he professed to own, whereas he had no such, patent —nor did he obtain such until July, 1851, a month after the maturity of the note.
    IV. The plaintiffs owe Crum $5,000. Their claim on this note has, therefore, been in effect satisfied. Under no circumstances can it be claimed that Boyd did more than promise to pay in case of Crum’s default. Instead of Cram’s being in default, he is the creditor of the plaintiffs.
    V. The verdict should be set aside, and judgment be given for the defendants.
    
      E. S. Van, Winkle, for plaintiffs,
    made the following points.
    I. Boyd was liable on the note as an endorser. (Seabury v. Hungerfield, 2 Hill. 80. Hall v. Newcomb, 3 Hill. 233.) And no particular form is requisite under the code, which requires merely a statement of the facts.
    II. The plaintiffs, having taken the note in good faith, for value, before maturity, are entitled to recover against Boyd. (Swift v. Tyson, 16 Peters, 1. Bailey on Bills, 550. Meckerson v. Howard, 19 John. 113. Braman v. Hess, 13 J. R. 52.)
    III. The writing of the guarantee on the back of the note after maturity, and under the circumstances detailed, did not invalidate the note, the words having been again erased before the action was brought. (Josselyn v. Ames, 3 Mass. R. 274. Nevins v. De Grand, 15 Mass. R. 436. Nevies v. Bird, 11 Mass. 436. Waring v. Smyth, 2 Barb. Ch. 119.)
    
      IV. The defendant, Boyd, not having denied receipt of notice of protest in his answer, the certificate of the notary was sufficient evidence of presentment and notice. (2 Revised St. 212 (2d Edition); Laws of 1833, Ch. 271, § 8.) At all events the evidence of Tyler is conclusive.
    V. If defects in testimony on plaintiffs’ part are supplied, even after a motion for non-suit, the court will not disturb the ease. (Jackson v. Leggett, 7 Wend. 377. Colvin v. Burnet, 2 Hill. 620.)
    VI. There must be judgment in favor of the plaintiffs for the amount of the verdict, interest and costs.
   Campbell, J.

Boyd was liable on the note as endorser. The cases cited by the defendant’s counsel are those where the action is brought by the payee or first endorser, against a subsequent endorser, or when suit is confessedly for the benefit of payee or the endorser.

We do not think there is anything in this case tending to show that the plaintiffs are not bona fide holders for full value, and they appear to have relied on the endorsement of the defendant Boyd when they discounted the note.

The certificate of the notary we think was sufficient. Laws of 1833, § 8, chapter 271, make such certificate presumptive evidence of the facts contained in it, unless the defendant shall annex to his plea an affidavit denying the fact of having received notice. Here the defendant expressly admits in his answer that he received notice, but denies that he has sufficient knowledge or information to form a belief whether he received due notice. If we concede that the mere answer may stand in place of the affidavit required by the statute, we do not think it meets the requirements of the law. The answer does not deny, but expressly admits the receipt of notice. The certificate states that notice was duly served, and it was presumptive evidence of that fact.

It was not necessary in this view for the plaintiff to have called the witness Tyler.

The fact that the plaintiffs are indebted to Crum, the payee and first endorser, we do not think material. It nowhere appears how that indebtedness arose or whether .the money is due. For aught that appears it may be a mortgage debt, not due.

Bosworth, J.

The plaintiffs are entitled to judgment on the verdict.

As to certain points there can be no controversy. Boyd endorsed the note at the request of Davis, that it might be delivered to Crum. It was so delivered: no fraud was practised by Crum on Davis, nor did he make any warranty which has been broken. Davis knew when he gave the note, that a patent had not then been obtained. One was subsequently obtained by Crum, and assigned by him to Davis and Evans, which assignment they accepted as performance by Crum of his promise to them. As between Davis and Crum the note was made on a good consideration; and Boyd, in the most favorable aspect of the case for him, was an endorser for the general accommodation of Davis, the maker: his endorsement has not been misapplied. The note was negotiated to the plaintiffs before maturity, for full value. They are therefore entitled to recover against Boyd, as endorser, if he has been properly charged as such.

The defendant Boyd, in his first point, erroneously states, as a ground for the inadmissibility of the notary’s certificate to prove demand of payment, that Boyd had “ annexed to his plea an affidavit denying the fact of having received notice.”

The answer admits expressly " receiving notice of protest of such note,” but alleges the want of sufficient knowledge to form a belief whether or not he received due notice of said protest.” The notary’s certificate was therefore competent evidence of any facts contained, and by law authorized to be stated, in it. It shows due presentment of the note, demand of payment, failure to pay it, and protest of it, for non-payment.

Next, as to the service of notice of "the .protest on Boyd. Tyler testifies to serving a notice in proper form, and on the right day, by leaving it at Boyd’s place of business. He served it by putting it under the door, and does not state whether it "was served in the morning before the store was opened, or at evening after it was closed, nor whether the store was open or closed at the time of the service. Such evidence, standing alone, would be unsatisfactory, and perhaps insufficient. But Boyd admits receipt of the notice, and does not deny that he received it on the day it was served. The testimony of Tyler and Boyd’s admission, together furnish sufficient prima facie evidence of due service of notice of protest on Boyd: and that he received on the day on which it might, legally, have been served.

Whether Boyd, as between Crum and himself, is to be regarded as first or second endorser, is of no consequence in this suit. He is an endorser who has been regularly charged as such, and the plaintiffs are holders for value. One who endorses for the general accommodation of the maker, or payee of a note, is liable to a holder for a value, taking it before maturity, though the holder knew when the note was transferred to him that the endorsement was an accommodation one.

The fact that the plaintiffs were indebted to Crum at the time they bought the note in the sum of $5,000, and that they were indebted to him when this action was tried, is neither a legal nor an equitable defence to Boyd. -It does not appear that such indebtedness was due when this action was commenced, so that it could have been set off by Crum, if he had been sued. And no such defence is set up in Boyd’s answer. The nearest approach to such a defence is found in the allegations that the note was never negotiated to the plaintiffs, that they paid Crum no consideration for it, that Crum delivered it to them, to be collected by them for him as his agents. These allegations are disproved by uncontradicted testimony, given by a witness called by Boyd.

If, as between Boyd and Crum, the former is to be treated as last endorser, and therefore entitled, on paying the note, to maintain an action against Crum, there is no allegation of his being unable to pay it, or of there being the slightest risk of Boyd’s ability to collect it from him.

All questions as to the effect of writing the guaranty on the note, over the name of Boyd, having been expressly waived by him on the argument, it is unnecessary to consider them. The motion by Boyd, for a new trial, should be denied.

Emmet, J., concurred. Motion for a new trial denied. Judgment for plaintiff, with costs.  