Matthew J. Fassin et al., Respondents, v. Charles D. Hubbard, impleaded, etc., Appellant

Matthew J. Fassin et al., Respondents, v. Charles D. Hubbard, impleaded, etc., Appellant. To relieve one who indorses paper from liability on his indorsement, he must insert in the contract itself words clearly expressing such an intention. The firm of B. & H. discontinued business save the adjustment and liquidation of its affairs. A new firm under the same name succeeded it, of which H. was a partner. He indorsed a note, on account of the old firm, “ B. <& H., old firm in liquidation.” In an action upon the indorsement H. alone defended. Held, that such words did not indicate an intent to avoid liability upon the indorsement, and that H. was liable thereon. Also held, that service of notice of protest upon an agent employed in liquidating the affairs of the firm, was a good service upon H. Testimony otherwise competent taken upon commission is not to be rejected, because not responsive to the interrogatory. (Argued December 17, 1873; decided January 20, 1874. Where a witness testifies positively to facts which may be within his personal knowledge and the opposite party makes no inquiries to ascertain whether they were so or not, the court must assume that the witness speaks from such knowledge. This rule applies as well where the testimony of the witness is taken upon commission as to an oral examination. Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiffs entered on a verdict. This action was brought against defendants, as indorsers of a .promissory note of $5,000, dated January 4, 1861, payable to the order of John H. Martin at the counting-house of Brander & Hubbard, in the city of Hew Orleans. Defendant Hubbard alone appeared and answered. Defendants were in partnership doing business in Hew Orleans. In July, 1860, the business was discontinued, save the settling up and liquidation of its affairs. Another firm was then formed with the same firm name, in which defendant Hubbard was a partner. The note in question was received on account of the old firm and was indorsed by Hubbard, as follows : “Brander & Hubbard, old firm in liquidation.” The depositions of two witnesses, Theodore Guyol and Prosper Camus, taken upon commission, were introduced by plaintiffs for the purpose of proving demand of payment, protest and notice. Guyol was a notary public; the demand and protest notice served were claimed to have been made by W. G. Latham, a deputy notary appointed by Guyol under authority of the laws of Louisiana. Latham was dead when the proofs were taken. The testimony of Guyol was as follows : “ That he caused the said note to be presented by his deputy, W. G. Latham (now deceased), to a clerk at the counting-room of Brander & Hubbard, in this city, where it was made payable, and demanded payment thereof, and was answered that no funds were deposited there to pay the same; that his said deputy, W. G-. Latham (now deceased), did present said note for payment at the counting-room of Brander & Hubbard, in Hew Orleans, on the said 4th day of January, 1862, being the time when and the place where said" note was payable; and payment was demanded there and then, and refused, whereupon said note was protested by him, witness, on January 4, 1862, at his office; that, after protest of said note, the indorsers thereof were duly notified of the same.” Camus testified that he was a clerk in the office of Guyol, the notary, and was witness of the protest made of the note; that Latham received the note as Guyol’s deputy, and made the proper demand; that the note was presented by W. G. Latham aforesaid, who is now dead, at the proper place of payment, at the maturity of the note, on January 4, 1862 ; and payment being refused, it was protested on the same day by Guyol, the notary; that on January 4, 1862, notices of demand and protest were written by the said Guyol; one to “ Brander & Hubbard, old firm in liquidation,” by a letter dated January 4, 1862, addressed to them, and on January sixth (the fifth being Sunday) handed to G. Burke, agent of the liquidation, by W. G. Latham, deputy of Theodore Guyol, notary, and now deceased. This testimony was received under objection. Win. F. 8/iepwd for the appellant. The notary’s certificate was not evidence that the note was presented for payment. (Dutchess Co. Bk. v. Ibbotson, 5 Den., 110; Bk. of Rochester v. Gray, 2 Hill, 227; Kirkland v. Wanzer, 2 Duer, 278.) The certificate was inadmissible, because it certifies to the action of a deputy and not that of the notary himself. (Hunt v. Maybee, 7 N. Y., 266; Warwick v. Crane, 4 Den., 460; Onondaga Co. Bk. v. Bates, 3 Hill, 53.) The statute of Louisiana allowing such certificate to be read in evidence applies only to the courts of that State. (Kirkland v. Wanzer, 2 Duer., 278.) The act of 1865 applies only to notes maturing in future. (Laws 1865, 516, Ch., 309.) Retroactive effect is never given to a statute unless required to enforce it. (Potter’s Dwarris on Stats., 162, n. 9; Dash v. Van Kleeck, 7 J. R., 477; Murray v. Gibson, 15 How. [U. S.], 421, 423.) An agent’s authority to receive notice of protest of a note will not be presumed, unless there is clear proof of authority, or proof from which a. general agency might be inferred. (Bk. of Auburn v. Putnam, 3 Keyes, 343; 1 Pars. on Notes, 499 and note.) The agency of one partner to bind the others by his declarations expires with the firm. (Van Keuren v. Parmelee, 2 Coms., 523; 1 Phil, on Ev. [4th Am. ed.], 491, 492; Lewis v. Woodworth, 2 Coms., 512.) Defendant’s indorsement did not impose any liability upon him. (Edwards on Bills, 282, 283; 2 Pars. on Notes, 21.) John Sherwood for the respondents. The notary’s certificate was presumptive evidence of the facts it contained. (2 R. S., 283, § 46 ; id., 284, § 47; Hart v. Wilson, 2 Wend., 513; Nichols v. Goldsmith, 7 id., 160; Halliday v. McDougall, 20 id., 81; Laws 1833, 394, Ch., 271, § 8.) This evidence can only be overcome by defendant’s affidavit annexed to his plea denying notice. (Bell v. Lent, 24 Wend., 230; Edwards on Bills, 463; Bk. of Vergennes v. Cameron, 7 Barb., 148; Lansing v. Coley, 13 Abb., 272; Harbeck v. Craft, 4 Duer, 122; Arnold v. R. R. V. U. R. R. Co., 5 id., 207; Burrall v. Degroot, id., 307; Young v. Catlett, 6 id., 437.) The notary’s certificate is sufficient to prove the protest and notice to indorsers. (Laws of 1865, 516, Ch.) 309; Miller v. Hackley, 5 J. R., 375; Halliday v. Martinett, 20 id., 167; Welsh v. Barrett, 15 Mass., 380; Cole v. Jessup, 10 N. Y., 96; Sheldon v. Babcock, 4 Hill, 129; Gawtry v. Doane, 48 Barb., 148.) The proof that Burke was agent of the firm by the admission of a copartner of Hubbard was proper evidence. (Fogerty v. Jordan, 2 Robt., 319; 1 Phil, on Ev., 92.) The service on Burke, the agent, was sufficient to charge the indorser. (Bk. of Auburn v. Putnam, 44 N. Y., 343; Edwards on Bills, 632 ; Bk. of U. S. v. Davis, 2 Hill, 451; Bk. of Ithaca v. Smith, 18 J. R., 230; Bartlett v. Robinson, 39 N. Y., 187; Bk. of Commonwealth v. Mudgett, 45 Barb., 663.) Notice to one partner is notice to all. ( Willis v. Green, 5 Hill, 232.) Defendant knew that the note had been presented and payment refused; he refused to pay it, and hence notice to him was not necessary. (Mech. Bk. v. Griswold, 7 Wend., 165; Comm. Bk. v. Hughes, 17 id., 94; Brooklyn Bk. v. Warring, 2 Sandf. Ch., 1; Edwards on Bills, 640, and cases cited.) The demand and notice were sufficiently made by a private citizen. (Cole v. Jessup, 10 N. Y., 96; 10 How. Pr., 515.) Defendant was liable even if the note had been forged. (3 Day, 12; 1 Cow. Treat., 204.) The notice was served in proper time. (Cuyler v. Stevens, 4 W end., 564; Howard v. Ives, 1 Hill, 263; F. Bk. of Bridgeport v. Vail, 21 N. Y., 485.) [MAJORITY — Grover, J.] Grover, J. The appellant, who only defends the action personally, indorsed the note as follows: “ Brander & Hubbard, old firm in liquidation.” The firm of Brander & Hubbard had been engaged largely in commercial business in New Orleans prior to July, 1860, at which time they discontinued business, except settling and closing up its affairs, and were succeeded in the commercial business by a new firm under the same name, of which the defendant, Hubbard, was a member. Although the former firm is said to have been dissolved in July, 1860, yet the case shows that it was continued so far as necessary for the adjustment and liquidation of its affairs. To what extent this would authorize one of the former partners to bind the firm in these transactions is a question not arising in the case, as Hubbard, who indorsed the firm name, is the only party who defends the action. It is insisted by the counsel for the appellant that the form of the indorsement shows that it was made for the mere purpose of transferring title, and that it precludes the idea of assuming liability as indorser upon the paper. This position cannot be sustained. The extrinsic facts show that the reason why the addition of the words “ old firm in liquidation” was made to the indorsement, was to show that it was made on account of that firm, and not of the one then carrying on business under the same name. To relieve one who indorses paper from liability as such, he must insert in the contract itself words clearly expressing such an intention. (2 Parsons on Bills, 21.) The defence principally relied on is that there was not a proper demand and notice to charge the defendant as indorser. There was no conflict in the evidence upon these questions. The defendant gave no evidence in relation thereto. The question is whether the plaintiff gave sufficient competent evidence to prove these facts prima facie upon the trial. If he did, the direction of a verdict for the plaintiff nmst be sustained. If sufficient competent evidence to prove these facts was given, the defendant could not have been prejudiced by any erroneous rulings, by which incompetent evidence tending to prove them was admitted, as none of the evidence was submitted to the jury. The plaintiff introduced the depositions of Gruyol and Camus, taken upon a commission issued in the cause, each of whom testified in substance that the note was presented at the place and time therein specified, and payment demanded by W. G. Latham, which was refused, and that notice of the demand, non-payment and protest was at the proper time served upon G. Burke, agent of the liquidation. The counsel for the appellant insists that this testimony is not sufficient to prove these facts, for the reasons, first, that it was not responsive to any interrogatory; and, second, that it appears that in so testifying the witnesses were not speaking of facts within their own knowledge, but from hearsay from Latham. The testimony as to the service of notice was directly responsive to the twelfth interrogatory, and I think that, as to the demand, may fairly be " regarded as responsive to the truth. This and other interrogatories were framed for the examination of Guyol, Latham ' and Camus, and were to be propounded to each; hence the language may be regarded as calling for the knowledge of each as to the presentment and demand and refusal to pay the note. But be this as it may, testimony, otherwise competent, taken upon commission, is not to be rejected because not responsive to the interrogatory, any more than that given upon an oral examination upon trial, because not responsive to the question. The reason suggested why the former should be rejected was that the party against whom it is produced has had no notice, and, therefore, no opportunity for cross-examination in regard to it. The answer to this is that the evidence is returned and filed with the clerk, and full opportunity of examination given to such party before the introduction of the deposition upon trial. If upon such examination the party finds a further cross-examination of the witness necessary, he should proceed to obtain it, instead of seeking to suppress it upon the trial, by which his adversary might be greatly prejudiced. The case shows that Guyol was a notary public, and that Latham, pursuant to the laws of Louisiana, was his deputy. That Camus was a clerk in the office. The counsel, therefore, insists that it is highly improbable that they should have been present when these acts were done by Latham. This may be so, but where a witness testifies positively to facts which may be within his personal knowledge, and the opposite party makes no inquiry to ascertain whether so or not, the court must assume that the witness speaks from personal knowledge. The counsel for the appellant considers this to be so as to oral examinations upon trial. It is equally so as to testimony taken upon commission, as to which we have seen the party may cross-examine if he will. It is further urged that service of notice upon Burke was not sufficient. It was proved by Mathews that Burke acted as the agent of the firm, in the liquidation of its affairs, at the office of the firm in New Orleans in 1860 and 1861. That he so acted with the knowlege of the defendant Hubbard. That he continued so to act in 1862, when the notice was served, will be presumed in the absence of proof to the contrary. He was the general agent for liquidating the affairs of the firm. The notice related to those affairs. Service upon him was, therefore, good service upon Hubbard. (1 Parsons on Notes and Bills, 499; Bank of Auburn v. Putnam, 3 Keyes, 343.) The judgment appealed from must be affirmed, with costs. All concur. Judgment affirmed.