Coddington v. Davis

1 How. App. Cas. 376

Opinion

Decision.—Judgment affirmed. Gardiner, Bronson, Jewett, Jones & Wright, J. J., for affirmance. Ruggles, Gray 6 Johnson, for reversal.

Note,—Gardiner, J., delivered the prevailing opinion of the court, and said: That the term “ protest,” in a strict technical sense, is not applicable to promissory notes. The word, however, has by general usage acquired a more extensive signification, and in a case like the present includes all those acts which by law are necessary to charge an endorser.

And that the letter of the endorser of the 28th January, 1840, furnished prima facie evidence of an intent by the endorser to waive demand of payment and notice, to which he was otherwise entitled.

On the point that the written statement signed by the plaintiffs and others, dated 8th February, 1840, was a valid discharge by the plaintiffs of Thomas Coddington, the maker of the note, from all liability thereon, and consequently of the endorser—held, that taking the schedule (A) in connection with the assignment, and the written direction of the defendant to Davis, as assignee, on the 24th of January, the defendant recognized this as a debt due from Thomas Coddington to himself, by claiming under the assignment by which it was so declared, and as a debt due from him to the plaintiffs by a voluntary application of his private funds to its payment.

The discharge refers to and absolutely adopts the assignment, with all its conditions and provisions as its basis. And the engagement entered into by Thomas Coddington at the time of the execution of the release confirms this view.

The discharge being legally binding upon the parties, it does not extend to this demand, and cannot have the effect either to discharge or extend the time of payment of the note in question.

Ruaoi/ES, J., delivered a dissenting opinion, in which he discussed only the effect of the instrument called the discharge, dated on the 8th February, 1840, signed by Davis, Brooks & Co., and said :

“ Finally. From reading the three instruments together, that is to say, the assignment and schedules, the discharge and the written promise of T. B. Goddington, I am brought to the following conclusions:

“First. That by the assignment and schedules, without reference to any other paper, Davis, Brooks & Co. were entitled to the dividends on the $10,000 debt, mentioned in schedule A, as the creditors of T. B. Coddington, although that debt was set down against the name of Samuel Coddington as endorser.

“Second. That by the recitals in the discharge, Davis, Brooks 8f Co. referred to the debts due from T. B. Coddington to them, of which this was the principal one, and therefore include this debt: that they do not refer to the debts set down to the names of Davis, Brooks 8? Co., and therefore do not exclude it.

“ Third. That the operative words in the body of the discharge are amply sufficient to include the debt in question, and do include it.

“Fourth. That the obvious meaning of the discharge was, that it should operate on all debts on which the creditors who signed it were respectively entitled to dividends; and,

“ Fifth. That Davis, Brooks 8f Co., in conformity with this construction, took Thomas B. Coddington’s written promise to pay, at the end of seven years, the balance that might remain due on this note, and on his other debts, after deducting what might be realized from the assignment.”

And was therefore of opinion that if the instrument signed by Davis, Brooks & Co. of the 8th February, 1840, did not entirely discharge Thomas B. Coddington from all liability on the $10,000 note as maker, it operated beyond a doubt to extend the time of the payment of the debt until the expiration of seven years from the date of the instrument, and therefore discharged the endorser. That the judgment of the supreme court should be reversed, and a new trial granted.

Reported, 1 Comstock, 186.