Bishop & Co. v. Williams

• Decision Date: 07 December 1893
• Citation: 9 Haw. 299
• Parties: BISHOP & COMPANY v. C. E. WILLIAMS; AND HENRY WATERHOUSE AND A. S. HARTWELL, EXECUTORS OF THE WILL OF J. H. WOOD, DECEASED.
• Court: Hawaii Supreme Court

9 Haw. 299

BISHOP & COMPANY v. C. E. WILLIAMS; AND HENRY WATERHOUSE AND A. S. HARTWELL, EXECUTORS OF THE WILL OF J. H. WOOD, DECEASED.

Supreme Court of Republic of Hawai'i.

December 7, 1893

HEARING SEPTEMBER 25, 1893.

EXCRETIONS.

Syllabus by the Court

(1) A written notice by a notary public to the executors of a deceased indorser of a promissory note, describing it, after their qualification as such executors, on maturity, that demand had been made at the place of payment and the note dishonored, and that the holders looked to the executors for payment, is a sufficient presentation of the claim under the probate statute of non-claim.

(2) Semble, that the presentment of a claim before the liability of the indorser had been fixed by reason of the dishonor of the note, would not be sufficient under the statute.

(3) Where the note designates a place of payment a presentment for payment at that place is sufficient without personal demand on the maker.

(4) The notice of the notary to the executors need not have stated who the holders of the note were.

(5) An erroneous instruction as to the effect of certain evidence is not ground for a new trial, if the jury would be obliged as a matter of law to find the same verdict on other legal evidence in the case.

(6) The contents of a document being discovered after verdict to be different from what was supposed, is not a good foundation for a motion for new trtal for surprise, if the document was in the party's possession at the trial and known by him to be there.

F. M Hatch, for plaintiffs.

A. S. Hartwell, for defendants.

JUDD C.J., BICKERTON AND FREAR, JJ.

OPINION

JUDD, C.J.

This is an action on a promissory note which in words and figures is as follows:

" $3000. " HONOLULU, Nov. 19, 1891.

" Twelve months after date we promise to pay the order " of C. E. Williams and J. H. Wood three thousand dollars " in U.S. gold coin at the bank of Bishop & Co. with interest " at 10 per cent. per annum. Value received.

" H. H. WILLIAMS & CO."

Endorsed on back-" C. E. Williams, J. H. Wood."

This note was the property of the plaintiffs by endorsement and delivery. Before maturity J. H. Wood, one of the endorsers, died and the defendants Waterhouse and Hartwell qualified as executors under the provisions of Mr. Wood's will. The other endorser, C. E. Williams, made no answer and judgment was entered against him by default and the case was proceeded with before the Circuit Court, First Circuit, August Term, 1893, to determine the liability of the estate of Mr. Wood on the note. The verdict was for the plaintiffs.

The case comes to us on defendants' bill of exceptions. The first point is on the exception to the Court's refusal to charge the jury as requested by defendants in their 6th prayer for instructions, viz.:

" Nothing said by Mr. Henry Waterhouse to Mr. Damon can hold the executors, not being in writing."

The Court also refused the plaintiffs' prayer for instructions (No. 2) " that the executors could waive the presentation of a claim at any particular time or in any particular form." The evidence shows that Mr. Waterhouse, one of the executors named in the will of Mr. Wood, asked of Mr. Damon, of the banking house of Bishop & Co., to see the note, which Mr. Damon showed to him, and he said it was " all right." Mr. Hustace, cashier of the bank, says this circumstance occurred before the note fell due; that he gave Mr. Waterhouse a statement of the notes held by Bishop & Co. endorsed by J. H. Wood, and, at Mr. Damon's request, got the note out and showed it to Mr. Waterhouse, who said that it would be all right. Mr. Waterhouse says that after he had been legally appointed administrator (26th August, 1892), he went to the bank of Bishop & Co.; that when the note was produced by Mr. Damon he told Mr. Damon he thought it would be all right; he thought it might be arranged and that Mr. Williams would have to pay it.

We think the instruction was properly refused. There was no attempt made by plaintiffs to hold the executors personally responsible. The statute of frauds requires a writing to hold an executor upon a special promise to answer out of his own estate, and an instruction of the character asked for would tend to confuse the jury. The evidence went in without objection, and its object was to show that the plaintiffs had duly presented their claim against the estate. The Court charged the jury that the statement made by Mr. Waterhouse that " it was all right, " is not sufficient in itself to bind the executors, that it to say, to make a new promise to pay this note, but " you may regard it as evidence tending to show that there has been a presentation of the claim to them." The jury were in this way properly instructed that Mr. Waterhouse's statement that it was all right did not bind him as a new promise to pay the debt out of his own estate and we do not perceive that it would have had that effect, even if in writing, and it is unnecessary to decide whether it was evidence of a presentation of the claim, for, as shown below, the demand and notice of the notary public was conclusive evidence of this, and a verdict for the defendant, if such had been rendered, could not stand, even if this instruction had not been given. This leads us to the consideration of the exception by defendants to the Court's granting plaintiffs' prayer for instruction numbered 1-" That the jury may consider the demand and notice by the notary public as evidence of a claim made by Bishop & Co. upon the estate of J. H. Wood." The note fell due Nov. 19, 1892, and on the last day of grace, Nov. 22, Mr. Paty, a notary public, presented it, as his notice of protest states, " at the Bank of Bishop & Co. where it was made payable and payment demanded, which was refused, the said note having been dishonored, the same was this day protested by me for the non-payment thereof, and the holders look to you for the payment thereof with all costs, charges, interests, expenses and damages thereby already accrued or that may hereafter accrue thereon by reason of the non-payment of said note." This notice was addressed to the " Executors of Estate of John H. Wood, " and Mr. Waterhouse admits that he received it a few days after the 20th November when he arrived here from the United States. The jury were told that this was evidence of a claim made by Bishop & Co. against the Estate of J. H. Wood, and they were also instructed that it was a question of fact for them to find whether the notice was sufficient. The instruction was also excepted to.

After much research we have come to the conclusion that the notice of dishonor and demand for payment made by the notary upon the executors of the will of J. H. Wood, is a sufficient presentation of the claim under our statute of non-claim.

The statute does not prescribe the form in which the claim must be made. It is sufficient if it apprises the executors definitely of the claim of its character and amount. 5 Encyc of Law, 217. It was not required, nor would it be proper, to deposit the note as a voucher with the executors. The notary may be considered as the agent of the plaintiffs in presenting the claim. " A notice of the non-payment of a promissory note personally served on the executor of the indorser of the note, or which is shown to have come to his hands, although it may have come from a notary protesting the note, will be sufficient to withdraw the claim from the influence of the statute of non-claim in Alabama, provided, it describes the note with accuracy, and informs...