
    Cayuga County Bank v. Warden et al.
    
    
      Promissory Note. — Indorsement.—Notice of non-payment.— Amendment.
    
    A notice of non-payment, though the note he misdescribed, will charge the indorser, if there were no other in existence to which it could be applied ; and this may be shown by extrinsic evidence.
    In case of a joint indorsement, it is sufficient, in the notice of non-payment, to describe the note, as indorsed by the party to whom it is addressed, without mention of his co-indorser.
    The sufficiency of a notice of non-payment, where there is no dispute about the facts, is a question of law for the court.
    In an action by indorsee against indorser, the plaintiff can recover under the money counts, though the defendant was an accommodation indorser. The nature of the consideration has no effect upon the remedy.
    The judge may allow an amendment, during the trial, without costs, under § 149 of the code.
    * Appeal from the general term of the Supreme Court, in the seventh district, where a judgment 'L in favor of the plaintiff, in a case tried before the court, without a jury, had been affirmed. (For a former report of this case, see 1 N. Y. 413.)
    This was an action of assumpsit brought by the Cayuga County Bank, as indorsee of a promissory note for $600, against E. A. Warden and F. L. Griswold, the joint indorsers thereof. The first count of the declaration was for work and labor done; goods sold and delivered; money lent, and money had and received; the other count, upon an insimul computassent. The following is a copy of the note sued on:
    “600.
    Ninety days days after date, I promise to pay to the order of F. L. Griswold and E. A. Warden, six hun-' hundred dollars, for value received, at the Cayuga County Bank.
    Auburn, N. Y., January 30,1845. S. Warden.” Indorsed — F. L. Griswold,
    E. A. Warden.
    The note, at maturity, was in the plaintiff’s bank, and was protested for non-payment. A notice of non-payment was served on each of the defendants, addressed to them, severally, in the following words: •
    “Cayuga County Bank, Auburn, May 3,1845.
    $600. ■
    Sir: Take notice, that S. Warden’s note, for three hundred dollars, payable at this bank, and itidorsed by you, was, this evening, protested for non-payment, and the holders look to you for the payment-thereof. - ■ Your obedient servant,
    P. B. Eaton, Notary Public.”
    # *It was shown, on the trial; under objection, -1 that the bank held no other note of the maker, indorsed by the defendants, and that the one in question was given in renewal of a note of the same maker, indorsed by the same defendants; the defendant, Gris-wold, had procured the renewals. To the reception of this evidence, the defendants took an exception.
    The plaintiff’s counsel being requested to state under which count of the declaration he offered the note in evidence, answered, under the first count only. The defendants then objected to the reading of the note in evidence, for the following reasons: 1. That the notice of protest was not a notice of protest of the note in question. 2. That the note in suit was made payable to the order of defendants jointly, and was indorsed by them jointly, and the notice mentioned only an individual indorsement. 3. That the plaintiffs had no right to 'show that the defendants were not misled by the notice, and if they had such right, it could not be shown under the common counts, no such fact having been alleged in the declaration. 4. That the notice was defective, in not stating when the note was made, when it became due, and that payment had been demanded and refused. 5. That the note could not be read in evidence under the first count, either at common law, or under the statute; that the case required a special count against the defendants, as indorsers; also, that in order to support the promise stated in the first *count, it was necessary .. ^ to prove the several items of indebtedness, stated *- as the consideration of the promise, and that the note was not evidence of work and labor performed, or of goods sold and delivered.
    The plaintiff’s counsel, thereupon, asked leave to amend by striking out so much of the count as stated work and labor, and goods sold, as the consideration of the promise; which was granted, without costs, and the defendant’s counsel took an exception. The learned judge (Maynard, J.) overruled the several objections to the reading of the note in evidence; and another exception was taken; as also, to the refusal of a motion for a nonsuit, upon similar grounds.
    The judge directed a judgment in favor of the plaintiff for the amount due upon the note, which having been affirmed at general term, the defendants appealed to this court.
    
      Worden, for the appellants.
    
      Porter, for the respondents.
   *Gardiner, J.

— When this cause was first before us, we held, in substance, that enough *- 4 appeared upon the face of the notice, to justify the application of the extrinsic evidence by which the note in question was identified; that the description there given was true in part, hut not in every particular, and that the maxim fa Isa demonstratio non nocet applied; because, after striking from the notice all that was false, enough remained to authorize the paroi evidence, by which' the note in controversy was identified, as the subject of that notice. The doctrine of that decision, and the propriety of its application to the case then before us, has been questioned; and it may be well, therefore, to refer to some cases illustrative of both.

Goodtitle v. Southern (1 M. & Selw. 299) was a devise of land; the premises were described as “ Trogues farm, now in the occupation of Bthat part of the description relating to the possession, was rejected as false, and effect was given to the devise by what remained. In Jackson v. Loomis (18 Johns. 81), the premises were described in the grant by their number, and by monuments, courses and distances; the number was rejected. In Lusk v. Druse (4 Wend. 313), the lot, on the contrary, was described by metes and bounds, and by number; the number was adopted to give effect to the demise, and the boundaries rejected. Those who are curious to ascertain how frequently a principle, coeval with the common law, has been recognised and acted upon, will find some of the authorities collected in Cowen & Hill’s Notes, from p. 1362 to 1382.

In this case, the note was described as “ S. Warden’s note payable at the Cayuga County Bank, and indorsed by” the defendant; the amount was stated in the body of the notice to be $300, and in the margin, were the figures $600, *which, in dollars, was the true ^ -• amount of the note protested. The extrinsic facts were — 1st. The note in suit: 2d. The knowledge of the defendants, that this note was in the Cayuga Bank; established by evidence, that it was given on a renewal of a former note, held by the plaintiffs, made and indorsed in the same manner with the one in controversy : 3d. That it was the only note in the bank, or, so far as appeared, made payable there, made by S. Warden, and indorsed by the defendant, according to the call of the notice.

This court held, that construing the notice in the light of these facts, all of which were known to the defendants, the note in question was primd facie sufficiently identified, by the name of the maker, the place of payment, the indorsement of the defendant, and the sum stated in the margin. That the amount in the body of the notice might, and under the evidence of surrounding circumstances, ought to be rejected, and that the note would then be designated by other parts of the description. This was the whole decision. It was the application of a familiar principle to a case imperatively demanding it.

There was nothing in the judgment that would seem to call for the authorized dissent of a member of this court, who, for reasons satisfactory to himself, took no part in the decision, but who, we were informed upon this argument, subsequently expressed his views in opposition to those of his associates, in a communication to the counsel of the defendants.

We were told upon the former argument, and it has been again repeated, that a note for $300 was not a note for $600. This is certainly true; and it was equally true, in Jackson v. Loomis (supra), that lot 24 was not lot 25. Effect, however, was given to the grant, in that case, by locating the land according to other parts of the description, and rejecting the number, and by this court, to the notice in this case, by rejecting the number of dollars in the body of it, and identifying the instrument by the other particulars mentioned.

*An attempt was made to distinguish the cases referred to from the present, by the consideration, that in grants and wills, the intention of the parties and of the testator, was the only thing to be ascertained. But the intention is to be gathered from the language of the instrument, and not otherwise; and the purpose of the grantor or devisor, to convey a particular piece of land, depends upon the description which will identify, and enable others to locate the parcel. So, the design' of the notary in this case, was to inform the indorser of the dishonor of a particular note; whether he has succeeded, depends, in like manner, upon the terms of the notice. If the subject is there described, so as to be identified, upon proof of extrinsic facts, which in the language of Lord Coke, “ stand with the notice,” the object will be accomplished; although the description may not be true, in every particular; and the defendant would be bound by it, although as dull of apprehension, as his counsel proposed to prove him. There 'is no difference in principle, therefore, between the case before us and those cited; certainly, nothing that should exempt an ordinary commercial notice, from a rule, which has been resorted to in the construction of wills, grants, and even of statutes.

Remer v. Downer (23 Wend. 626), which the counsel for the defendant supposes this court to have overruled, is in conformity with the principles above suggested.In that case, the note was made by one Young, and Berner, who was sought to be charged, 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, &c. The letter containing the notice was, upon the outside, addressed to Berner, 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 Bemer 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.” *As the chancellor f ^ viewed the facts, every part of the notice, as to l the note in controversy was false; false as to the amount, the indorser, and the address; and Berner 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 Berner. On this supposition, Berner was informed, that James Young’s note, payable at, &c., indorsed by Mm, was protested, &c. 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.”

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 a part of the notice; the court of errors, I think, correctly construed the notice as it read upon its face, without reference to the outside direction. Had the notice, in the body of it, been addressed to Berner, instead of 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.

# 2g -i * 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. The authorities referred to by the defendant’s counsel, established the principle, that 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 Cowen 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 afterwards, 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 recognised, 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). Whether these exceptions are consistent with principle, is a question not necessary to be decided at this time. Hughes v. * Wheeler settled this question, as one of plead- f qQ ing, and we think, the decision ought not to be *- disturbed. The judgment must be affirmed.

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 N. Y. 413), pronounced on the former appeal, puts at rest the questions as to the sufficiency of the notice to the indorsers, of the nonpayment of the note, on its presentment to the maker. This court, on the former appeal, held that the written notice of the 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, nor because it did not expressly state that payment of the note had been demanded or refused. It was held, that the statement in the notice that the note had been protested for nonpayment, 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. 625-26; 2 Denio 594r-95.)

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 Cowen 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 (16 Wend. 659), which *was a . . -* suit by the transferree 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 Oh. J. Bronson, in Butler v. Rawson (1 Den. 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. 93-4; 1 R S. 768, § 1; 10 Wend. 344-5; 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. Bank of Alexandria (7 Wheaton 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 understood 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 603-4; 7 Id. 355; s. o. •7 Barb. 13.)

I am of opinion, that the judgment of the supreme court ought to be affirmed.

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 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 cop eludes 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 I *w^en aPP^ed this case. And that principle a 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; to 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.”

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 pf law arising from the note is fully rebutted. There has been some slight diversity of views respecting the rule, that the note is only primd facie evidence of money lent, or had and received, and may be rebutted by proof; but reason and authority decidedly support it. All the cases have been ably examined by Mr. Justice Gridley, in the late case of Balcom v. Woodruff (7 Barb. 15-17), and it is unnecessary to go over the same ground. On the authorities referred to by him, in support of the rule, I consider it established law. The objection was seasonably and properly taken in the present case and overruled; on this ground, the judgment, in my opinion, should be reversed, and a new trial granted.

McCoun, J., also dissented.

Judgment affirmed.

The following is the dissenting opinion of Judge Gray from the former judgment of this court, in 1 N. Y. 413. It is here presented, as a powerful argument on the other side of a question which must frequently be mooted.

Gray, J.

{Dissenting) — This is not the case of separate and successive indorsers; the note in question having been drawn payable to the defendants, jointly, as payees, and having been indorsed by both, their indorsement, by legal operation, became joint also. The notice of protest should, therefore, have been directed to both, or the indorsement should have been referred to, as their joint indorsement. The notice served, in this case, being addressed to them, severally, by name, by legal as well as grammatical construction, refers to a separate and individual indorsement of the party addressed, and is, for that reason, insufficient.

The notice, in order to have made it sufficient, in this respect, shou.ld have described it as the note indorsed by the defendants jointly. The notice directed to E. A. Warden, instead of describing the instrument as “S. Warden’s note, indorsed by you,” should have stated it as “ S. Warden’s note, indorsed by you and F. L. Gris-wold and so, the notice to F. L. Griswold should, in like manner, have described it as “S. Warden’s note, indorsed by you and E. A. Wardenor, if the address of the notice had been to both of the defendants, naming both, instead of one only, then, the notice, in the body, in the form used, would have been sufficient to inform them, respectively, that it was the note indorsed by them, jointly, for S. Warden. For instance, if the notice had been addressed to E. A. Warden and F. L. Griswold, and had then, in its body, stated it as S. Warden’s note “ indorsed by you,” that would have been a sufficient notice that it was a note indorsed by them jointly. The notice is, therefore, defective, on this ground.

But besides this defect for misdirection, which I deem important, the notice was still more clearly and unquestionably defective, in misstating, in the body of the notice, the amount of the note. The amount given in figures, at the head or margin of the notice, formed no essential part of the notice, and, in determining its sufficiency, is entitled to no consideration. Although usual, as a convenient reference to the amount, to prefix or affix to a note the sum in figures, yet, it forms no part, or, at all events, no controlling part, of the instrument. In Sanderson v. Piper (5 Bing. N. C. 425) and Bacon’s Law Tracts, pp. 99 and 100, cited in note 1, Greenleaf’s ed., vol. 1, p. 432 (3d ed.), where a bill was drawn expressing 2001 in the body, in words, but 2451 in figures in the margin, it was held, that the words in the body must be taken as the true amount to be paid, and that the ambiguity created by the figures in the margin was patent, and could not be explained by paroi.

In no case that I can conceive, can the insertion in the notice of protest, of the figures prefixed to a note, be useful, except in the case where the notice has the note incorporated in it, and it is referred to as a copy» of the note in hese verbd. But in such a case, clearly, as in the case of the note itself, the amount in figures in the margin or prefix, if it varies from that in the body, in words, must yield; and that in the body must be taken as the true amount of the note, as the controlling sum in the notice. Now, apply to the case under consideration, the rule of the cases referred to, and which I consider a rule, not only sound in principle, but preeminently safe in practice, and it will be entirely clear, that the amount given in the body of the notice, in writing, must control, and must be taken as the true amount of the paper protested; and that explanatory paroi evidence, and proof of facts extrinsic of the notice, were inadmissible, and should have been excluded.

The notice given in this case does not, in fact, nor does it pretend to, give a copy of the note, and the prefix thereto of the amount in figures is, consequently, of no importance, nor is it at all serviceable to convey to the defendants that information which it was the office of the notice, and the duty of the bank, to communicate. The amount given in the body of the notice governs, and is the legally controlling, and was, indeed, the only effectual, designation of.the amount of the note. An omission to give the amount of the note altogether, would, under the circumstances of this case, certainly, have been less objectionable, than the insertion of a mistaken sum; yet, no one will pretend, that such an omission would not have been fatal to the notice, in this instance.

The question is not, whether the defendants, by this notice, were or were not misled, but were they so notified thereby, as to become fixed as indorsers. They, doubtless, well knew, in the receipt of these notices, that they had indorsed for S. Warden no such note as the one referred to in the notice; and they were, therefore, not called upon, or at all liable, to take any steps to the security either of the bank, or of themselves. They were, no doubt, aware, that they had jointly indorsed a note for S. Warden for $600, but of the non-payment of that note by the maker, the notice contained no information, and they had reason, therefore, to conclude that that note was actually paid. The notice of protest of a severally indorsed note for S. Warden for $300, cannot be presumed, nor is it claimed, even by the plaintiffs, in itself, to have given to the defendants information that the note for $600, indorsed by them, jointly, for the same maker, had been protested for non-payment.

The true inquiry is, did the notice, in itself, communicate to the defendants the information which the law holds indispensable to fix them as indorsers? Were they duly advised, by the notice, that the note of $600, indorsed by them, jointly, for S. Warden, had been protested for non-payment ? It is entirely clear, that the notice, in itself, conveyed no such information, and the introduction by the plaintiffs of evidence aliunde, to show knowledge in the defendants, is a virtual concession of the insufficiency of their notice. Besides fixing the liability of the indorsers, the office and object of the notice, is, to give the indorsers an opportunity to provide for their indemnity. The notice in this case was entirely insufficient for that purpose, nor was it sufficient to put the defendants on inquiry; they well knew, that no such note as the one described in the notice had ever been indorsed by them, and until they were .duly notified of the demand and non-payment of the note they had actually indorsed, they were under no obligation to make inquiry or payment. It was not their business, to call on the bank for information on the subject; but it was the business of the bank, to give to the defendants all the information required by law to fix them as indorsers; and having, by a mistake in the notice, failed to do so, the consequences are with the bank, and the defendants are exonerated from the payment of the note.

To be effectual, the notice, must be sufficient in itself; it should contain, and carry upon its face, all the information essential to the communication of full knowledge to the indorsers; and its sufficiency should not, in any respect, depend upon the proof of facts, or knowledge, extrinsic of the notice. Proof that the note in question was given in renewal for a balance due on one previously indorsed by the defendants for S. Warden, and that this was the only note in the bank, made by S. Warden, and indorsed by them, was, upon principle, as well as the authorities before cited, inadmissible, and should have been excluded.

But allowing that this evidence was properly admitted, even then, it does not aid the notice, or render it sufficient. By the introduction of this evidence, the plaintiffs, as we have already seen, substantially admit the insufficiency of the notice; and the question then is, does this evidence correct the mistake, and supply the deficiency of the notice ? Or, does it establish the position, that by the notice and the existing facts proved, the defendants were duly apprised that their jointly indorsed note for S. Warden, for $600, was protested foi non-payment ? I am of opinion, that it does not.

The effect of the proof, as I view it, was only to show more clearly the insufficiency of the notice. If it provéd anything, it proved that no such note as the one given in the notice was held by the bank, and that, consequently, the defendants were, by the notice, subjected to no duty or liability whatever. To hold that a notice of protest of a note for $300, which the bank did not hold, was a good notice of a note for $600, which it did hold, would be a conclusion inconsistent alike with sound law and sound logic. It would be preposterous to hold, that because the bank held no other note indorsed by the defendants, than the one for $600, therefore the defendants were bound to know, that it was their note for $600 which was referred to in the notice. The facts proved, did, certainly, not correct, nor, in anywise alter the notice, nor establish its sufficiency.

But the rule, as I understand it, does not admit paroi proof of facts extrinsic of the notice; or, if such is not the clearly-settled rule, it is important, that it should be so settled; a contrary rule would be alike unsound and. unsafe. Indorsers, under a contrary rule, inasmuch as they would be unapprised of the facts which, on the trial, they would have to meet, would, consequently, be unprepared, and would thus be liable, at all times, to surprise and imposition. The evidence in this case, extrinsic of the notice, was inadmissible, and should have been excluded; but giving to it full effect, in either event, the defendants had not notice or knowledge sufficient, to fix them as indorsers. The judgment of the supreme court should be affirmed. 
      
      See Gates v. Beeeher, 60 N. Y. 518, 527 ; Gilbert v. Dennis, 3 Met. 495.
     
      
       Se.i infrit, 32.
     
      
       Hall V. Gould, 13 N. Y. 127.
     
      
      
         The code has not altered the rule, that the words “ for value received,” import a consideration, as between indorser and indorsee. Benson v. Couchman, 1 Code R. 119, Edmonds, J.
     