The bill which was drawn, payable one day after date, was presented to the drawee for acceptance on the day it matured; acceptance was refused, and it was protested for non-acceptance. The certificate of the notary states that on the same day (12th September) he forwarded written notice, by mail, to the drawers (the defendants) and indorsers (Miles Bartlett), informing them of the non-acceptance thereof. It was also proved that on the following day the payees (Miles Bartlett) received the original draft, with notices of protest for themselves and the defendants, and caused such notice to be served on the latter that day. The drawee also informed one of the defendants, on the 12th September, at the office of the payees, that he had not accepted or paid the draft. In view of this proof, I think the referee did not err in refusing to dismiss the complaint, and in deciding that the bill was duly presented and protested, and that due notice was given to the defendants to charge them as drawers. The defendants claim that the draft being due when presented, and demand made by the notary, it was then too late to present it for acceptance; and presentment for acceptance of a bill which is due, is not sufficient to charge the drawers. But it is well settled that the holder of a bill, payable a specified length of time after date, or on a day certain, need not, for the purpose of charging the drawers and indorsers, present it for acceptance until it becomes due and payable. It may be presented before or at the *Page 593 time of its maturity. (Edwards on Bills, 387; Story on Bills, § 231; Allen v. Suydam, 20 Wend., 321; S.C., 17 Id., 368.) The evidence to show notice was enough, if credited, to justify the finding of the referee. He had, in the first place, the certificate of the notary that he forwarded, on the day it was protested, written notice by mail to the drawers, of the non-acceptance of the draft. It was furthermore shown that the original draft, and notices of protest for non-acceptance, were received in New York by the payees, and that the notice directed to the defendants was served on them by a clerk of the payees and indorsers; and the proof tended to the conclusion that this service was on the 13th September, the day following the presentment and protest. It likewise appeared that on the 12th September, one of the drawers was verbally informed by the drawee that he had dishonored the bill.
A written or verbal notice to the drawers, of the non-acceptance of the draft, the day following the presentment and demand, was sufficient to charge them. Indeed, in this case, it is not clear that any notice to the drawers, of the dishonor of the bill, was necessary, they being the original debtors.
It conclusively appears that neither the defendants, nor Uhler, for whom the hogs were purchased, ever realized any value or advantage whatever from the sale and delivery of the hogs. But this alone would be no defence if they were not warranted sound, healthy, and free from disease; or if they had not been, before the sale, exposed to, and at the time of such sale were not affected with the disease called cholera, and those that died did not die of any contagious disease contracted before the sale, there would be no failure, wholly or in part, of the consideration of the bill in suit. The defendants would not be absolved from liability, if without fault or error on the part of the vendors the speculation resulted disastrously to the vendees. Were we at liberty to look at the evidence, and form our own conclusions of fact therefrom, it is possible that we might differ with the referee in respect to his finding. But the facts found by him cannot be questioned in this court. (Bond v.Spelman, 4 Comst., 284; Griscom v. The Mayor of New *Page 594 York, 2 Kern., 586; Western v. The Genesee Mutual InsuranceCompany, 2 id., 258.) He has found that Miles Bartlett did not, on the sale of the hogs to the defendants, warrant them to be sound, healthy and free from disease, but refused to do so; and that before such sale they had not been exposed to, and at the time thereof were not affected with any cholera, and that those of them which died after the sale and delivery to defendants did not die of any contagious disease contracted before the sale. This is substantially a finding that the hogs were sold without any warranty that they were free from disease, and that in fact at the time of the sale and delivery, they were not infected with any contagious disease, subsequently causing the death of any of them. Of course, if they were sold without warranty, and were not infected at the time of such sale with the disease of which some of them afterwards died, occasioning thereby a loss to the defendants, there could be no pretext for repudiating the contract of sale, or alleging a total or partial failure of consideration for the draft. So, also, if there were a warranty, and the hogs were free from disease and infection at the time of sale and delivery, but subsequently contracted a contagious disease, of which some of them died, there would be no breach of warranty, and no ground for questioning the consideration of the draft. There was no error, therefore, in the legal conclusion of the referee, upon the facts found by him, that the sale and delivery of the 393 hogs were a good consideration for the drawing of the bill in question, and that such consideration had not failed wholly or in part.
There was a single objection by the defendants on the trial to the admission of evidence. This objection the court regards as well taken, and of sufficient importance to require a re-trial of the case. One Cassius Stiles, a hog dealer in the city, about the time of the purchase from Miles Bartlett, sold to the defendants, for Uhler, 133 hogs. Dalton, who acted for defendants in the purchase of both lots, and who swore to Miles Bartlett's warranty, and what Miles said about the hogs, on his cross-examination by plaintiff's counsel, testified *Page 595 "that he bought a lot of hogs of Cassius Stiles the same day; he warranted them; he believed that he gave about the same warranty Miles gave." Subsequently Stiles was produced as a witness by the defendants. On his cross-examination by the plaintiff he testified to the sale of his lot of hogs. The question was then put to him: "What was said between you and Dalton about warranting the hogs? The question was objected to by defendant's counsel, the objection overruled, and the witness proceeded to narrate the conversation and statements made at the time his hogs were sold. Any inquiry as to Stile's sale was, of course, collateral and irrelevant to the issue, and the plaintiff could not cross-examine Dalton as to a warranty made by Stiles, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony. If a question relative to a distinct collateral fact be put and answered, evidence cannot afterwards be adduced for the purpose of contradiction. This was the effect of the question objected to and the reply. On the plaintiff's cross-examination, Dalton had testified "that Stiles warranted his hogs; he believed he gave about the same warranty Miles gave." This was a collateral fact; and it was not competent to contradict the witness in respect thereto. He could not thus be impeached or discredited. It was important to discredit Dalton, as he was the only witness who testified to Miles Bartlett's warranty; but it could not be done by contradicting him as to a collateral matter.
For this error the judgment must be reversed, and a new trial ordered, with costs to abide the event.
All the judges, except MARVIN, J., agreed that a refusal to accept on the day payment is due is equivalent to a refusal to pay, and renders a demand of payment unnecessary. On the question of evidence, all the judges concurred.
Judgment reversed, and new trial ordered. *Page 596