The nonsuit in this, case was properly denied. When the plaintiff rested, he had proved the contract by which the defendant had received the note for collection and agreed, if it were not paid on presentation, to have the same protested, and he had further given some testimony tending to prove that this contract had not been performed.
It appeared that, when the note was returned to the plaintiff by the Adams Express Company, no certificate of protest was attached to it, and the plaintiff refused to receive it for that reason. It was not then pretended, by the person having the principal charge of the affairs of the company, that the note had been protested, and he promised the plaintiff that he would write and inquire why it had not heen done.
The plaintiff never heard from the company, or any of its officers', after that interview. .
Upon this evidence, the jury could properly have found that the note had not been protested, in compliance with the defendant’s contract, and it would not have been proper to have taken the case from them.
After the close of the testimony, the court ruled :
1. That the evidence on the part of the defendant did not amount to proof of. waiver of notice of non-payment, and notice of protest by Saltus & Co., the indorsers of said note.
2. That such evidence was not sufficient, as between the *419plaintiff and the defendant, to discharge the express company from-the performance of their agreement.
3. That there was no sufficient evidence to go to the jury of any waiver of notice of non-payment, or notice of protest, on the part of Anna Saltus, one of the indorsers of the note.
To these three distinct propositions the defendant took a single exception,, and it follows that, if any one of the propositions can bé maintained, the exception is not well taken. (Day agt. Roth, 18 N. Y. R. 448; Winchell agt. Hicks, Id. 558; Haggart agt. Morgan, 5 N. Y. R. 422; Hunt agt. Maybee, 7 Id. 266.) The last of the three propositions was undisputedly correct. There is no evidence whatever in the case tending to show that Anna Saltus ever waived her rights as indorser of the note.
Whatever may have transpired between the maker and the other indorsers, affecting the rights of the latter, it is not pretended that Mrs.-Saltus ever participated hi or had any knowledge of it. She was therefore entirely unaffected by the agreement by which it is claimed the other indorsers waived notice of protest. Consequently, the judge ruled correctly as to that part of the case, and the exception does not bring the other propositions under consideration.
Neither was there error in the refusal to charge that the plaintiff could not recover, unless the jury should believe that the maker of the note was insolvent.
The evidence touching the maker’s pecuniary condition was given by himself, and he frankly confessed that he had no means to pay his debts at that time, nor had he been able to pay this note in money at any time since its maturity.
The particulars he gave of his condition, all went to show that he was insolvent.
There was no dispute about these .facts sworn to torching'' his liability to pay his debts, and there was no |ín^rM¿ refusing to submit the question to the jury. 5
The judgment should be affirmed, with costs,
All concur. Affirmed.