Ball v. Dennison

4 U.S. 140

Opinion

Shippen, Justice,

(a)

— The cause depends upon one point, which is a matter of fact. The general law is, that when a promissory note is dishonored by the maker, the indorser becomes immediately liable; and the holder is entitled to recover the amount from him, unless he is discharged by the áct of the holder, either in giving further time or credit to the maker; or in neglecting to give the indorser due notice of the non-payment. This notice is indispensable: so much so, that it is immaterial, whether the maker becomes insolvent before the notice, or not. Still, however, what constitutes due notice, is a point to be settled. In England (where it is regarded as a question of law), the rule is strict and positive, that the notice must be given on the next day, if the parties live in the same place; and by the next post, if they live in different places. But in Pennsylvania, it has hitherto been regarded as a matter of fact, to be decided by a jury, under all the circumstances of each case, as it arises. In deciding it, however, the jury will always be governed by a sound and reasonable discretion. They will allow but a short time for giving notice, where the parties reside in the sam< town ; for, six weeks, in such a case, would certainly be too long ; and fo giving notice in different parts of the country, they will bring into the calculation of a reasonable time, the facility of the post, the state of the roads, and the dispersion of the inhabitants in relation to the post-towns.

*With these prefatory remarks, let us review the circumstances of the present case. The note was duly protested for non-payment; the notary, at the same time made diligent inquiry after the indorser ; particularly from the maker, who was most likely to possess the necessary information. He heard that the indorser lived at Havre de Grace, but was then gone to the eastward. Proof has also been given of Dennison’s repeatedly visiting Philadelphia, after the protest; but it is not proved, that the plai n tiff was acquainted with the fact; and without that proof, he cannot be legally charged with laohes. It is proved, that J. B. Bond was Dennison’s general agent in Philadelphia ; but it is not proved, that he was a public known agent; nor (which is again essential to affect the plaintiff’s claim) that the plaintiff was apprised of the agency. As to the fact that Dennison lived at Havre de Grace ; and as to the argument, that notice ought to be given, wherever the indorser lives ; it is important to remember, that the commencement of the transaction was in Philadelphia; that the note was dated there ; and that all the parties contemplated Philadelphia as the place of payment. Besides, it would interrupt the negotiability of notes, and greatly embarrass the general operations of commercial credit, if an indorser was entitled to notice, on the strict terms suggested, though he lived in the East, or the West Indies ; or though he was a mere itinerant, constantly shifting the place of his abode, and the scene of his business. It is, therefore, an object of leading influence, in the decision of this cause, to consider whether, under all the circumstances in proof, the plaintiff was bound to inquire for the defendant, beyond the city of Philadelphia ? The case of Steinmetz v. Curry, 1 Dall. 234, 270, ought not to be a guide on the occasion ; for there, the bill was kept by the holder for two years and a half, without giving notice to an indorser, who was known to reside constantly at Poughkeepsie, in New York. But upon the whole, it appears to the court, that the plaintiff did make a prompt inquiry for the indorser, in the city of Philadelphia ; and that the defendant has not sufficiently established those facts, which would have made, it incumbent upon him, either to send notice to Havre de Grace, or to serve notice upon the agent in Philadelphia. If the jury concur in the opinion, they will find for the plaintiff ; but if they do not, it is their right, and their duty, to find for the defendant.

Verdict (delivered without the jury’s retiring from the bar) for the plaintiff, $6051.13, and six cents costs.

Shippen and Smith, Justices, were the only judges on the bench, at the trial of this cause.