Nesbit v. Stringer.

agent made application to the defendants, not as an ordinary collector of a bill against them, but as a person deputed by him to exercise the authority he had been vested with by Mr. Upton, that is to say, to get an account of the proceeds, and make a settlement as to whatever amount might on such accounting appear to be in their hands. The plaintiff by his own act has shown that he so considered it. If the $92.69 were received an account of the bill for printing the second edition only, for which he alleges the defendants contracted with him, he was bound to have credited that payment exclusively to the expense of printing the second edition, but the bill of particulars annexed to his complaint shows that this credit was given upon the whole account, for printing both editions, and that it was received therefore as proceeds accounted for, towards the plaintiff's whole bill, and not as a payment on account of the bill for the second edition, or of any recognized or specific demand, which the plaintiff then claimed to have against the defendants. With these facts already in the case, the defendants had a right to show that a statement of their accounts in connexion with the pamphlet, was exhibited to the agent; that the money was received by him on that basis, in full of all claims against the defendants by reason of the pamphlet to that date; and that the defendants notified the plaintiff through such agent that the unsold copies in their hands were subject to his order, without any claim to them on their part; and the evidence offered by the defendants for that purpose was improperly excluded.

Second, as to the judge's charge. The evidence of Mr. Upton shows that he had three interviews with the defendants, or one of them, Mr. Stringer. That at the last of these interviews, which was on the morning after the order for printing the second edition had been given, Mr. Stringer asked permission to have an advertisement of Stringer and Townsend printed on the cover of the second edition, and that Mr. Upton made no objection, or in other words, consented, so far as he was concerned. Now the asking of this permission only one day after the alleged order, and the character of Mr. Upton's answer to it, are pretty strong "circumstances of the transaction and of the parties to it" in the language of the judge, to guide the jury in deciding not only what was Mr. Stringer's meaning and

Nesbit v. Stringer.

Mr. Upton's understanding of what Mr. Stringer said to him when he requested him to order the second edition, but also what was the fair construction of that request. For assuredly if the defendants had ordered the second edition on their own' account, at their own risk, and for their own benefit, they required no permission from Mr. Upton or any one else, to have what they pleased printed on the cover; and the fair presumption is, that Mr. Upton would have told them as much, if he then considered that they had given such an order.

This third interview was the most important part of the res gesto upon which the jury were to make up their verdict (except indeed the subsequent order given by Mr. Upton to the plaintiff on the defendants for the proceeds of sales), and instead of being excluded from the consideration of the jury it should have been directly brought to their notice.

It is no answer to this, to say that this conversation was after the order was given, and that the plaintiff was not present at it. Neither was he present at the second interview. Mr. Upton was the medium through which the order was given, if Mr. Stringer gave it; Mr. Upton was the witness called to prove it; and Mr. Upton must necessarily by his acts and language be the interpreter of it. The law is not so imperfect in its administration of justice as to give the plaintiff the chances of yesterday's uncertainty, and deprive the defendants of the benefit of to-day's explanation; and where the attempt is to fasten a contract on a party for a losing undertaking, by inference from circumstances and conversations, he has a right to ask at least, that all the circumstances and all the conversations relating to the matter should be taken into consideration.

The defendants' counsel expressly requested the court to charge the jury that all the conversations should be taken together for the purpose of determining the legal effect of what was stated in the second interview, but the judge instructed them that they were to be guided in this respect by all the circumstances that had taken place in relation to the printing and publication of the pamphlet from Upton's first seeing the defendants until the second interview at which it was alleged the printing of the second edition was ordered.

He therefore excluded from their consideration the conver

Pierson v. Boyd.

sation which took place between Mr. Upton and Mr. Stringer at their third interview; and upon that ground, the charge having been excepted to, as well as for the exclusion of evidence before referred to, the verdict should be set aside and a new trial granted.

HENRY L. PIERSON & SAMUEL HOPKINS V. ROBERT H. BOYD, impleaded with ROBERT DAVIS.

R. D. for a good consideration made his promissory note to C., and B. endorsed the same for his accommodation. C. before the note attained maturity, endorsed and transferred it for value to the plaintiff, who brought the action against R. D. as maker, and B. as endorser.

Held, that whether C. was or was not liable to B. as first endorser, the latter was clearly liable as endorser to the plaintiffs, the facts that the note was transferred to them by C., and that they knew B. to be an accommodation endorser, constituting no defence.

The sworn answer of the defendant B. admitted that he had received notice of the protest of the note, but alleged "the want of sufficient knowledge to form a belief whether or not he received due notice of said protest."

Held, that considering the answer as an affidavit, it was not such an affidavit as the statute requires in order to exclude the certificate of the Notary from being read in evidence.

It was proved that a notice in proper form was served on the right day at B.'s place of business by placing it under the door, but the witness did not state at what hour the service was made, nor whether the room was open or closed. Held, that although this proof, if standing alone, would have been unsatisfactory, yet that connecting it with the admissions in the defendant's answer it was, as evidence of a due service, at least primâ facie sufficient.

(Before CAMPBELL, BOSWORTH, & EMMET, J.J.)

December 15th, 1852. February 26th, 1853.

MOTION for a new trial on behalf of the defendant, Boyd. This action was brought against him and Davis, upon a note dated September 25th, 1850, at nine months, for $1,259, made by Davis, payable to the order of John Crum, and endorsed by Boyd first, and subsequently by Crum. The jury, under the direction of the Court, found a verdict for the plaintiffs, and assessed the damages at $1,396,5%, with liberty to defendants to make a case to be heard in the first instance at the General D.-II. 3

Pierson v. Boyd.

Term. The defendant Boyd now moves on a case made. From that it appears, that the complaint avers the making of the note by Davis, describing it, "and that said defendant, Boyd, then and there endorsed the said note in writing. And that said defendant, Davis, then and there delivered the note with said endorsement thereon as aforesaid, to said John Crum, who afterwards, and before said note became due and payable, duly endorsed same in writing to plaintiffs." It avers presentment at maturity, demand of payment, protest for non-payment, "of all which said defendant, Boyd, had due notice."

The answer of Boyd controverts the allegations in the complaint, except that it admits he endorsed a note made by Davis, September 25th, 1850, and that he "received notice of protest of such note, but denies having any knowledge or information sufficient to form a belief whether or not he received due notice of said protest, and he therefore controverts the allegation in that behalf.”

It alleged an agreement made between Crum and Davis on the 5th of November, 1851, to give Davis six months' time to pay the note, that Crum was authorized to so agree, and that thereby Boyd was discharged.

It also sets up a failure of the consideration of the note, and that the plaintiffs held it as agents of Crum, and were collecting it for his benefit.

The new matter of the answer was put at issue by a reply. The issues made by the answer of Davis need not be stated. The action was tried on the 26th of May, 1852.

On the trial, the plaintiffs (the handwriting of Boyd being admitted, and that of Crum proved) read in evidence a note, and the endorsement thereon, as follows, viz. :

"$1,250."

"New York, September 25th, 1850. "Nine months after date I promise to pay to the order of John Crum, twelve hundred and fifty dollars at the Ocean Bank, with interest, value received.

(Signed)
(Indorsed)

"ROBT. H. BOYD,

JOHN CRUM,

PIERSON & Co."

"ROBERT DAVIS."

Pierson v. Boyd.

Plaintiff's counsel then offered in evidence the notary's certificate of the protest of the note and of service of notice on Boyd as endorser. To this Boyd's counsel objected "on the ground that such certificate was not evidence of the facts contained therein, the defendant Boyd having denied, under oath by his answer, receiving due notice of non-payment of said note. The objection was overruled by the Judge, and defendant's counsel excepted thereto, and plaintiff's counsel read said certificate in evidence. The certificate showed the due presentment and protest of the note on the 28th of June, 1851, service of notice on Crum, and stated, "that notice of protest was duly served on Robert H. Boyd, by leaving the same with a man attending at his place of business, on the next morning (30th June)." The counsel for plaintiff here rested, and the defendant's counsel moved for a non-suit on the following grounds :

1st. That the plaintiffs having received the note from Crum, a prior endorser, could not recover from the defendant, Boyd, who is a subsequent endorser.

2d. That if the plaintiffs could recover, they were bound to prove a consideration passing between them and said Crum, before they could recover against defendant Boyd, inasmuch as the receipt of the note by plaintiffs from the prior endorser was in itself notice that the defendant Boyd was not liable to the prior endorser.

3d. That there was no evidence that defendants had received due notice of the non-payment of said note, or that the payment thereof had been duly demanded.

The motion for non-suit was reserved for further consideration and argument at a general term.

John Crum, being called as a witness on the part of the defendants, testified that he transferred the note to the plaintiffs in February, 1851, who paid for it in cash, the amount of it less the legal discount for the time it had to run. That the plaintiff's knew at the time all the facts in relation to the consideration of the note. That they were at the time owing him about $5,000, but when to become due was not stated.

Being cross-examined by plaintiffs, testified as follows:Since I parted with the note I have not had control of it; I