Nichols v. Goldsmith

7 Wend. 160

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The facts not positively proved, are demand of the maker, and notice to the endorser, and the question is whether the evidence which was given, was, under the circumstances, sufficient. 1st. As to demand of payment: “ The general rule is, that a demand must be made on the maker of the note on the day it falls due. The exception is that when the note is payable at a particular place, such demand need not be made, if the holder, or any one for him, is at the place with the note, so that he may receiye the money and give up the note.” 13 Mass. 1$. 558, 9. In Saunderson v. Judge, 2 H. Bl. 510, it was held that demand need not be personal, but may be at the house of the maker, or the place which he appoints to make payment; and that as they at whose house it was to be paid were themselves the holders, it was a sufficient demand for them to turn to their books and see the maker’s account with them, and a sufficient refusal to find that he had no effects in their hand. .Such was the evidence in this case, and according to these cases it was sufficient. 2d. As to the notice: A protest in this cqse was unnecessary. It has been decided in this court that tfie written memorandum made by a notary, who died before the trial, may be given in evidence to ■ prove demand, and notice of nonpayment. Halliday v. Martinet, 20 Johns. R. 172. 2 Wendell, 369, 513. In Halliday v. Martinet, this court adopt the language of the supreme court in Massachusetts, in Welsh v. Barrett, 15 Mass. R. 380: “That what a man has done and committed in writing, when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of a jury.” In that case the court permitted the memorandum of the messenger of a bank, he being dead, to be received in evidence, to prove demand on the maker, and notice to the endorser of a note left for collection. So too, memoranda made by clerks in the usual course of their business, have been received as evidence of the facts stated in those memoranda, where the clerks who made them are déad. 3 Gampb. 305,379. 1 Starkie’S EV. 315 to 318.

The evidence offered was competent, and,prima facie, sufficient. There is very little dangér to be apprehended from such testimony, as the opposite party may rebut it, if it is incorrect. Being competent evidence, if uncontradicted, if is sufficient to warrant the verdict of the jury.

Motion for a hew trial denied.