Marchant v. Langworthy. By the Court, BEARDSLEY, J. The substance of the objection to the legality of the annual meeting of 1842 was, that notice had not been posted by the clerk of the district as the statute directs. (1 R. S. 480, 74.) The court of common pleas seems to have proceeded upon the ground that the adjournment of the annual meeting of 1841 to that of 1842 was a sufficient notice of the latter. But the power " to adjourn from time to time, as occasion may require," (1 R. S. 478, § 61,) does not apply to such a case. Meetings are required to be held in each school district annually, and each annual meeting is to fix the time and place for holding the next. (Id. § 62.) An annual meeting, therefore, cannot be an adjourned meeting, within the meaning of the statute. The latter is one to be held between two annual meetings "as occasion may require." It is declared by statute that "the proceedings of. no district meeting, annual or special, shall be held illegal, for want of a due notice to all the persons qualified,to vote thereat, unless it shall appear that the omission to give such notice, was wilful and fraudulent." (Id. § 63.) In the present instance, the clerk omitted to post notice, believing it to be unnecessary. It was not pretended in the court below that the omission was fraudulent, and no such question can be made here. The annual meeting of 1842 must therefore be taken to have been a legal assemblage; and as the defendants were duly chosen at that meeting, their defence is complete. The result in this case would be the same if the statute had omitted to declare that the want of notice should not invalidate the proceedings of an annual meeting. The provision requiring the clerk to post notice of annual meetings, is merely directory to that officer. And "there is a known distinction," says Lord Mansfield, "between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory." (Rex v. Loxdale, 1 Burr. 447.) An annual meeting is required to be held in each school district; and at each annual meeting, the time and place of holding the next annual meeting is to be fixed. ( 62.) For greater caution, and to give greater publicity to the meeting, the statute Downer v. The Madison County Bank. directs the clerk to post notice of it; but that is not essential to its validity. The time and place for holding it may always be ascertained by examining the clerk's records; and an objection that notice was not duly posted should never be allowed to prevail. The foundation of the meeting is the order of a previous annual meeting; not the posting of a notice by the clerk. The former is indispensable; but not the latter. (See The People v. Allen, 6 Wend. 486; The People v. Peck, 11 id. 604; Whiskard v. Wilder, 1 Burr. 330; Dwarris On Statutes, 713 to 716.) The judgment of the common pleas must be affirmed. Ordered accordingly. DOWNER vs. THE MADISON COUNTY BANK. A bank, having received from the plaintiff a note for collection, employed a notary to attend to the business, who afterwards returned the note to the bank with a cer. tificate of protest and of notice sent to the endorser; whereupon a suit was commenced against the endorser by the plaintiff, in which the former proved that the notice sent was defective, and the plaintiff failed to recover. He then brought assumpsit against the bank for a breach of the implied undertaking to give due notice; alleging, among other things, that the note was valueless without the responsibility of the endorser. Held, that the bank was not liable for the costs and expenses incurred in prosecuting the endorser, but only for the amount of the note with interest. ASSUMPSIT upon the implied undertaking of the defendants to demand payment and give the necessary notice to charge the endorsers on a promissory note left with them by the plaintiff for collection. The cause was tried before GRIDLEY, C. Judge, at the Oneida circuit in April, 1843. The plaintiff was the owner of a promissory note made by James Young on the 20th of April, 1835, for $560, payable eighteen months from date, to the order of Isaac Whitaker, at the Chemung Canal Bank; the note having been endorsed by Whitaker, and by Aaron Remer. Before the note came to maturity, the plaintiff left it with the defen Downer v. The Madison County Bank. dants for collection, and they sent it to the Chemung Canal Bank where it was payable. Soon after the note fell due, it was returned by the Chemung Canal Bank to the defendants, with a notarial certificate annexed, stating that it had been regularly protested and notice given to the endorsers. By the plaintiff's direction, the cashier of the defendants then sent the note to an attorney for collection, and the plaintiff brought a suit on it in this court against Remer, the second endorser, who defended on the ground that he had not received notice of protest; and he annexed an affidavit to his plea that no notice had been received. The plaintiff recovered against Remer in this court; (Downer v. Remer, 21 Wend. 10;) but, on a writ of error brought by Remer, the judgment was reversed, upon the ground that the note was misdescribed in the notice which had been sent to him. (Remer v. Downer, 23 Wend. 620, and 25 id. 277. And see 2 Hill, 594.) On the trial of the present action, it appeared that the maker and first endorser of the note were insolvent, and that Remer was abundantly able to pay if he had been duly charged. The plaintiff claimed to recover the amount of the note with interest-$857. He also claimed to recover the sums paid by him, during the course of the litigation with Remer, for costs and counsel fees in this court and the court of errors, together with the amount he had paid for Remer's costs on the reversal of the judgment, amounting in the whole to $602,36—making a total of $1459,36. The judge decided that the plaintiff was entitled to recover the whole sum, and the jury found a verdict accordingly. The defendants now moved for a new trial on a case. H. Gray, for the defendants. By the Court, BRONSON, J. In consequence of the neglect to give a sufficient notice to Remer, the plaintiff has lost his debt, and that amount, with the interest upon it, constitutes the true measure of damages. That is the loss which has directly resulted to the plaintiff from the breach of the defendant's conVOL. VI. 82 Downer v. The Madison County Bank. tract. I see no principle upon which the plaintiff can recover the costs and expenses which were incurred in the vain attempt to collect the note from Remer. If the suit against him had any necessary connection with the breach of the defendants' undertaking, it was only a remote consequence, for which the defendants are not answerable. The wrong complained of must be the proximate cause of the damage. Such is the general rule, and this case does not fall within any established exception to it. The injury was complete and the right of action perfect the moment the proper time for giving notice had gone by. The plaintiff was not obliged to sue Remer. He might have brought his action at once against the defendants, and recovered the full amount of his debt. True, the suit against Remer was brought upon the supposition that he had been duly charged as endorser. But that was the plaintiff's mistake, and must be his misfortune. The defendants are not answerable for it; or at least, not in this form of action. It is said that the defendants led the plaintiff into the error by returning the note with a notarial certificate annexed, which stated that notice had been given to the endorsers. But the action is based upon the implied undertaking of the defendants to give notice; and not upon any false representation by them that notice had been given. Nothing of the kind is mentioned in the declaration. Indeed, it would have been difficult to frame a count partly in assumpsit and partly in case. But it is enough that the action is founded on the contract, and on nothing else. The only immediate or necessary damage which the plaintiff sustained by the breach was the loss of his debt; and the defendants are not answerable for the remote consequences of their default, however injurious they may have been to the plaintiff. We see no difficulty in the other questions made by the defendants. There must be a new trial unless the plaintiff consents to reduce the verdict to $857-the amount of the note with interest. Ordered accordingly. END OF JULY TERM. |