Woodin vs. Foster and Wells, 16 Barb. 146

By the Court, Gridley J. This suit was brought on a note, made by the defendant Wells and indorsed by the defendant Foster. It was referred to Calvert Comstock Esq. a referee, to hear and decide. The referee has made his report, and decided, 1. That the note was legally demanded; 2. That legal notice of non-payment was given to the defendant Foster, who thereby became fixed and liable as indorser; 3. That the facts proved by the defendant did not constitute a defense to the note. The counsel for the defendant insists that there was no proof of a presentment of the note on the day and at the place of payment.

If there was any proof tending to show these facts it- Would not be the duty of the court to set aside the report; though the evidence might be in our judgment too slight to found a decision upon. The report is like the verdict of a jury, and must be destitute of any evidence to support it, to warrant the court in granting a new trial. But in this case the proof was entirely sufficient. The note was left at the place of payment the day before it fell due, and remained there, as is inferrible from the testimony of the witness, till the day after it fell due. This is sufficient, within the case of Nichols v.

Goldmsith, (7 Wend. 160.) The next day the witness saw the maker and he admitted he had not paid the note, and he refused to pay it. The same remark applies to the notice of non-payment. It was verbal; and the witness says that he informed Foster that he had left the note at Marble’s, (the place of payment,) and that Wells had not paid it, and that the plaintiff would hold him liable as indorser.

Now the witness is giving a narrative of what he did in the way of giving notice, and though he speaks of “the note” instead of giving a description of the note, by date and amount, yet he was speaking of this particular note; and it is entirely clear from the conversation of the parties that Foster well understood that this note was referred to. This was enough, as it was a question of fact which the referee found in favor of the plaintiff.

A verbal notice, communicated to the indorser, and which calls forth a conversation about the note in question, is very different from a written notice sent to him; where the written notice constitutes the only means which the party has, to inform the indorser of the particular note intended by it ; and that is misdescribed. In this case there was no misleading of the indorser; and though informal, the notice.was sufficient, and the referee was warranted in so finding. That a verbal notice was sufficient, see Cuyler v.

Stevens, (4 Wend. 566.) The facts attempted to be proved by the defendant were, that though the note was payable in money, the plaintiff agreed at the time of the making of the note, to receive his pay in the share or part of an inheritance in real estate, that belonged to one of the daughters of the maker of the note.

Now in addition to the fact that this evidence was in direct contradiction of the tenor and face of the note, it appeared that the plaintiff never agreed to receive this share in full satisfaction of the note; and the parties differed as to the sum at which this interest in the inheritance should be received. The referee decided right on this point also. [Oneida General Term, January 3, 1853. Gridky, Pratt, W. F. Allen and Hubbard, Justices.] A new trial must he refused.