The following is a copy of the letter referred to
in the opinion, delivered with the note: "New York, Jan
28th, 1892. Mess. G.W. Wylie & Co.--Gentlemen: We inclose our
note for $5,000, dated Jan. 28th, 1892, to cover any advances
made to us or to be made from date. Note on demand. Yours
truly, R.H. Dana & Co."
The
following is the memorandum of the court concerning the
finding for defendant:
"I
find as follows: Shortly before January 28, 1892, W.D. Dana
presented to the defendant the blank, and asked her to
place her name on the back of it, so that it could be used
by the firm of R.H. Dana & Co., if desirable. In order to
induce her to sign, he said to her, in substance, that
probably the note would never be used, but, if it was used
she should be notified before it was used, and that in no
event would it be used for more than $2,000. Relying upon
these statements she placed her name on the back of the
blank, and returned it to him. She had no other or further
conversation about the note, nor did she know until the
suit was brought what use had been made of it. I do not
find that she ever authorized any other use of this blank
except such as is implied by law from thus placing her name
upon it. January 28, 1892, R.H. Dana took the blank from
the safe of the firm, and in the office of the firm, in the
presence of Geo. W. Wylie, filled it out, and delivered it
to the said George, and, with the note, delivered the
letter which was put in evidence; and at the same time R.H
Dana said to Wylie that W.D. Dana was to raise the money
through the defendant, and take up the note as soon as
possible. In less than a year from this time, the firm was
changed to a corporation, which failed in October, 1893.
For further statement of facts see the plaintiff's
requests for findings of facts in the paper herewith
returned. I dispose of these requests as follows: I find
Nos. 1, 2, 3, 4, 7, 8, and 27 as requested. I find (as
amended by me on the paper) Nos. 5, 6, 9, 10, 11, 12, 13,
14, 17, 18, 19, and 21. Except as otherwise stated by me in
this memorandum, I decline to find Nos. 15, 16, 20, 22, 23,
24, 25, and 26.
"As
to the so-called 'Conclusion of Law,' contained in
this paper, I decline to adopt the second. As to the first, I
rule that the defendant authorized, so far as a bona fide
holder for value was concerned, the blank to be filled by any
one of the firm of R.H. Dana & Co., specifying the date and
place of making, the payee and maker, the amount and the time
and place of payment. The defendant contended, among other
defenses, that no such demand and notice had been given as is
required by law. The law of New York governs on this point,
and the cases cited on the briefs are to be taken as the
evidence, starting out with the presumption that the law is
the same as here except so far as otherwise shown by the
evidence. I find that by the law of New York a person placing
his name upon the back of a note before delivery stands as an
indorser (and not as maker or guarantor), having a right to
demand and notice. Upon the facts found, I find that by the
law of New York, in order to hold the defendant, demand and
notice should have been made and given within a reasonable
time, to be determined with reference to all the
circumstances of the case and the situation of the parties,
and I do not find that such demand and notice was made and
given within a reasonable time. Having thus found, I, without
passing upon the other grounds of defense, find for the
defendant."
OPINION
KNOWLTON
J.
The
note in suit was payable in New York, and was made and
delivered there. The rights and liabilities of the parties
are therefore to be determined by the laws of New York.
Lawrence v. Bassett, 5 Allen, 140;
Woodruff v. Hill, 116 Mass. 310; Jewell v.
Wright, 30 N.Y. 259.
By the
law of New York, one who puts his name on the back of a note
before delivery, as the defendant in this case did, is a mere
indorser, and not a joint maker or guarantor. Like that of
any other indorser, his liability does not become absolute
until after a proper demand and notice. Hall v. Newcomb,
7 Hill, 416; Meyer v. Hibsher, 47 N.Y. 265;
Phelps v. Vischer, 50 N.Y. 69.
In the
present case a demand was made and notice was given on or
about July 31, 1893, more than a year and a half after the
date of the note, which by its terms was payable on demand.
The question is whether this was within a reasonable time, so
that the indorser was charged thereby. To show the law of New
York bearing upon this question, certain statutes, together
with 35 decisions of courts in that state, were put in
evidence. The law of another state is a fact to be proved
like any other fact, by evidence. Where the evidence is a
single statute or a decision of a court, the language of
which is not in dispute, the interpretation of it presents a
question of law for the court; but where the law is to be
determined by considering numerous decisions, which may be
more or less conflicting, or which bear upon the subject only
collaterally, or by way of analogy, and where inferences must
be drawn from them, the question to be determined is one of
fact, and not of law. Hackett v. Potter, 135 Mass.
349; Bank v. Wood, 142 Mass. 563, 8 N.E. 753;
Ufford v. Spaulding, 156 Mass. 65, 30 N.E. 360;
Bride v. Clark, 161 Mass. 130, 36 N.E. 745. In the
present case it is not contended on either side that any
statute or decision introduced in evidence relates to a
contract
identical with that before us, but the counsel for the
plaintiff argues from the cases in New York on one side and
the other that the principles established, when applied to
this note, entitle him to a verdict; while the counsel for
the defendant argues to the contrary. The judge of the
superior court, in considering the evidence, was called upon
to determine, as well as he could, what...
