Burbank v. Beach , 15 Barb. 326 ( 1863 )

By the Court, T. R. Strong, J.

The plaintiff, in respect to the interest of Bissell, Cope and others, in the bill of exchange, must be regarded as a “ trustee of an express trust,” within the meaning of that phrase in § 113 of the code; and might therefore properly bring the action, without uniting those persons with him. He was the nominal proprietor of the bank; all the contracts and transactions of the bank were in his name as proprietor ; and he is clearly within the last clause of the section referred to. But, aside from that section, the objection of nonjoinder of those persons cannot prevail, it not having been taken in the answer. (Code, §§ 144,147,148.)

The authority of the notary, to demand payment of the bill and give the requisite notices, is to be inferred from the fact that the bill was in his possession. (Bank of Utica v. Smith, 18 John. 229. Story on Bills, § 360.) If the statement in his certificate, that what he did was done at the request of the Bank of Albany, is of any importance, it may also fairly be inferred that he received the bill from that bank, and as they had possession of it, that they were duly authorized to employ the notary.

The evidence of due presentment of the bill for, and demand of, payment, is sufficient. It appears by the notary’s certificate, that the presentment and demand were made at the maturity of the bill, “ at the office of Chipman & Savage, the acceptors;” this language imports that the office was their place of business ; and it will be presumed in favor of the notary that the time in the day was proper. (Story on Bills, § 351. De Wolf v. Murray, 2 Sandf. 166. Cayuga Co. Bank v. Hunt, 2 Hill, 635.)

In respect to notice of dishonor of the bill, the certificate states, that the notary “ gave notice of the non-payment of the-said bill of exchange to the drawer and indorsers as follows,” showing a due service by mail. If the notice was, simply, that the note had not been paid, it was defective; notice of the demand of payment was also necessary. [Story on Bills, § 390. Sto. on Prom. Notes, § 350. Dole v. Gold, 5 Barb. 490.) But the certificate does not purport, and was not required, to contain a copy, or the contents of the notice given; and I am inclined to think it must be understood to mean, that the notice was of non-payment on due presentment of the bill for payment, as stated in the certificate. [Seneca County Bank v. Neass, 3 Comst. 442, and cases cited. Warren v. Warren, Law Reporter, March, 1844, vol. 6, p. 501.) A reasonable intendment in support of the official act of the notary, warrants that construction. If notice was not received by the' defendant, it was in his power, by annexing to his answer an affidavit denying its receipt, to make it necessary for the plaintiff to prove the notice, in some other mode than by a notary’s certificate. [Laws of 1833, ch, 271, § 8.) If notice was received by him, and was defective, it was in his power to produce it, and have the benefit of the defect. As he has done neither, all presumptions should be strongly against him.

The verbal agreement testified to by Boyce that the time of payment of the bill in suit should be extended, was, according to his testimony, part of the agreement for the mortgage, and made at, and prior to, the execution of the mortgage; and it is a fatal objection to it that it contradicts that instrument. The mortgage describes the bill in suit; the condition of the mortgage is, that it shall be paid with other bills and sums, and authority is given to sell the premises, in case default shall be made in payment of any sum secured. It contains no provision for an extension of the time of payment of any paper. According to the mortgage, no other time being specified, the bill was to be paid at maturity, which was the 13th of October, 1851, and the mortgage might have been enforced, in respect to it, upon its non-payment at that time; but according to the verbal agreement, the time of payment of it.was extended to the 15th of January, 1852. The mortgage, then, provided for its payment at one time, and the verbal agreement at another. Here is a direct contradiction, and it is plain that the mortgage must be taken to express the true and whole agreement in regard to the time of payment. (Farmers and Man. Bank v. Whinfield, 24 Wend. 419.)

[Cayuga General Term, June 6, 1863.

Seldrn, Johnson and T. R. Strong, Justices.]

The defendant cannot set up the verbal agreement, if Boyce could not. His rights have not been affected, if time has not been given by an agreement which Boyce could avail himself of.

There is nothing in the position, that the verbal agreement between Boyce and the plaintiff, as soon as made, and before the execution of the mortgage, effected a discharge of the defendant. The plaintiff proposed to extend Boyce’s paper to certain dates, if he would give the plaintiff a mortgage on his mill, and Boyce said he would do so. An extension could not be claimed by Boyce, under this agreement, before he executed the mortgage.

The judgment appealed from must be affirmed.