Kip v. People's Bank & Trust Co.

• Decision Date: 31 January 1933
• Docket Number: Nos. 73, 84.,s. 73, 84.
• Citation: 164 A. 253
• Parties: KIP v. PEOPLE'S BANK & TRUST CO.
• Court: New Jersey Supreme Court

164 A. 253

KIP

v. PEOPLE'S BANK & TRUST CO.

Nos. 73, 84.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1933.

Syllabus by the Court.

1. A notary public is a public officer.

2. A question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal.

3. So much of a contract between a notary public and a bank as obligated the notary public to perform the functions of his office for a sum other than the fees fixed by law and permitted the bank to collect and retain to its own use the notary public's statutory fees is contrary to public policy, and void.

4. The naked carrying out of such a bargain, even the acceptance of the agreed compensation, by the notary does not accomplish full satisfaction or create an estoppel.

5. The contract of employment between a notary public and a bank held to distinguish the instant case from those cases that arise out of obligations purely statutory, and therefore to bring the action for recovery of fees within the operation of section 1 of our statute of limitations, 3 Comp. St. 1910, p. 3162, § 1.

Appeal from Circuit Court, Passaic County.

Action by Walter Kip against the People's Bank & Trust Company. From the judgment, defendant appeals, and plaintiff cross-appeals.

Affirmed.

Heine & Laird, of Newark (John A. Laird and Edward L. Duggan, both of Newark, of counsel), for plaintiff.

Henry C. Whitehead, of Passaic (Israel B. Greene, of Newark, of counsel), for defendant.

CASE, J.

This case comes up on appeal by the defendant and cross-appeal by the plaintiff; the matters below having been heard and disposed of by Circuit Court Judge Mackay at the Passaic circuit.

Kip, a notary public, was employed by the defendant over a period of about twenty-two years to render notarial services in connection with the protest of checks, notes, and negotiable instruments in the course of defendant's banking business. By agreement between the parties, plaintiff was paid a salary of $75 a month, and defendant received and retained the notarial fees. During the entire period the plaintiff accepted the monthly compensation in full payment of his services, and made no claim or demand for the whole or any part of the notarial fees until he had quit the employment; having received the aforesaid salary in full. Thereafter he brought this action.

The complaint contains three counts, all grounding in the proposition that, as a notary public, the plaintiff performed notarial services for which he became entitled to the notarial fees fixed by the statute, and two of them alleging the receipt of the fees and the retention of them by the defendant. The stated obligation of the defendant is to pay the plaintiff the full amount thereof for the entire period of service less the monthly payment of $75. Defendant's answer admitted the receipt and retention of certain fees, but set up that the services rendered by the plaintiff were performed by him as defendant's agent and at a monthly compensation which was paid to and received by him, by mutual agreement, in full satisfaction for such services, and that the plaintiff was thereafter estopped to deny the contract or to assert a claim for other or additional compensation; and further that the plaintiff was barred by the statute of limitations as to all claims arising prior to a date antecedent by six years from the date of the beginning of the action. On plaintiff's motion the court struck out the defendant's answer as to so much of the claim as fell within six; years next preceding the institution of the suit; and defendant's appeal lies from the order thereon. On defendant's motion the court struck out so much of the demand as related to a period prior to six years before the institution of the suit; and plaintiff's appeal lies from that order. The judge, sitting without a jury, found for the plaintiff for the fees during the last six-year period, less the monthly payments; the sum being $22,039.50 damages, and costs. It was agreed by plaintiff and defendant that that was the amount due the plaintiff, if he was entitled to recover for the six-year period.

The contention of the defendant is fivefold: First, that a domestic notary public is not a public officer; second, that the plaintiff's services were not official acts; third, assuming that a notary is a public officer, he is not such an officer as to come within the rule prohibiting public officers from assigning their fees or emoluments or accepting less than permitted by statute; fourth, assuming that the contract was void when made, on the ground of public policy, that that conclusion does not affect the case at bar because here the plaintiff, by his conduct, after earning the fees waived the same and made a gift thereof to the defendant, and is thus estopped from claiming same; fifth, the notary's fees allowed by our statute are permissive and not mandatory, and may be waived in whole or in part.

Defendant's first point on appeal is negatived by Geddis v. Westside National Bank, 106 N. J. Law, 238, 148 A. 917, wherein this court adopted the opinion below by Circuit Court Judge Newman in 145 A. 731, 7 N. J. Misc. 245. Defendant argues that this passage in the Geddis opinion, "both counsel agree that a notary public is a public officer," indicates that the court assumed, but did not decide, the legal proposition involved in the statement. We think otherwise. The finding that a notary public was a public officer was an essential step in the conclusion reached; and we understand the quoted sentence to be a pronouncement of the law, with the added observation that counsel on both sides agreed therewith. That such is the law is well established. The office of notary public is of ancient origin and for many centuries has been known to most, if not all, Christian nations. In re Opinion of Justices, 150 Mass. 586, 23 N. E. 850, 6 L. R. A. 842. While some of the functions of a notary public vary with the jurisdiction, others are very generally attached to the office. Perhaps no description will, in each detail, fit everywhere, but 46 C. J., p. 501, gives this:) "A notary or notary public is a public officer whose function it is to attest and certify, by his hand and official seal, certain classes of documents, in order to give them credit and authenticity in foreign jurisdictions; to take acknowledgments of deeds and other conveyances, and certify the same; and to perform certain official acts, chiefly in commercial matters, such as the protesting of notes and bills, the noting of foreign drafts, and marine protests in cases of loss or damage."

A notary public has not only the powers and duties that come to him from the laws of the jurisdiction of his appointment, but also those that because of such appointment come from foreign states and nations. Illustrative of the recognition and credit given outside the jurisdiction to the official acts of that officer is our own statute, an act relative to oaths and affidavits, 3 Comp. St. 1910, p. 3774, plac. 34: "* * * Any oath, affirmation or affidavit required or authorized to be taken in any suit or legal proceeding in this state, or for any lawful purpose whatever (except official oaths and depositions required to be taken upon notice) when taken out of this state, may be taken before any notary public of the state, territory, nation, kingdom or country in which the same shall be taken * * * and a recital that he is such notary or officer in the jurat or certificate of such oath, affirmation or affidavit, and his official designation annexed to his signature, and attested under his official seal, shall be sufficient proof that the person before whom the same is taken is such notary or officer. * * *" That the office is a public office has been judicially held in numerous instances, of which the following are some: In re Opinion of Justices, supra; Britton v. Niccolls, 104 U. S. 757, 26 L. Ed. 917; Pitsch v. Continental and Commercial National Bank, 305 Ill. 265, 137 N. E. 198, 25 A. L. R. 164; Teutonia Loan & Building Co. v. Turrell, 19 Ind. App. 469, 49 N. E. 852, 65! Am. St. Rep. 419; In re Opinion of Justices, 73 N. H. 621, 62 A. 969, 5 L. R. A. (N. S.) 415, 6 Ann. Cas. 283; People v. Wadhams, 176 N. Y. 9, 68 N. E. 65; ...