Big Sandy National Bank v. Chilton

21 S.E. 774, 40 W. Va. 491, 1895 W. Va. LEXIS 37

• Court: West Virginia Supreme Court
• Decided: April 13, 1895
• Status: Published

Opinions

English, J udge :

On the 29th day of July, 1892, the Big Sandy National Bank brought an action of assumpsit in the Circuit Court of Cabell county against W. E. Chilton, M. B. Mullins, Thomas H. Harvey, Z. T. Vinson, J. C. Williamson, and W. H. Crum, on a certain negotiable note made by W. E. Chilton, dated January 13, 1891, whereby, three months after date, without grace, he promised to pay to order of M. B. Mullins, two thousand dollars, payable at the First National Bank of Huntington, value received, with interest from date, which note was indorsed by M. B. Mullins, Thomas H. Harvey, Z. T. Vinson, J. C. Williamson and W. H. Crum to the said Big Sandy National Bank.

The defendants Z. T. Vinson and T. H. Harvey plead noñ-assumpsit, and issue was joined thereon. The case was submitted to a jury, and resulted in a verdict for the defendants Z. T. Vinson and T. H. Harvey, and against the defendants M. B. Mullins and W. E. Chilton, for the sum of two thousand one hundred and sixty dollars and ninety four cents; and thereupon the plaintiff moved the court to set aside said verdict so far as it found for the defendants T. H. Harvey and Z. T. Vinson, and award it a new trial on the ground that so much of said verdict was contrary to the law and the evidence, and because the court misdirected the jury, which motion was overruled by the court and judgment was rendered in accordance with said verdict; and thereupon the plaintiff excepted to the rulings of the court, and tendered its bill of exceptions, which was signed, sealed and made a part of the record in the cause.

After the testimony in the case was concluded, the plaintiff asked the court to give the jury the following instruction: “The court instructs the jury that if they find from the evidence that the note sued on was duly presented at the counter of the bank at which it was payable on the day it was due, and payment demanded, at the close of banking hours, and payment was refused, and it was on the same day duly protested by the notary who presented it, and the notices of protest were duly sent by the United States mail that day to the Big Sandy National Bank or M. H. Houston, the cashier thereof, and the cashier, Houston, on the same day he received the said notices, duly mailed them to T. H. Harvey and Z. T. Vinson, Huntington, W. Va. (their place of residence) and placed them so addressed in post-paid envelopes in the post office at Catlettsburg, Ky., then you should find for the plaintiff against the said T. H. Harvey and Z. T. Vinson.” The defendants T. H.' Harvey and Z. T. Vinson objected to said instruction, and the court sustained said objection, and refused to give said instruction, to which ruling the plaintiff excepted. The said defendants Harvey and Vinson asked the court to give the following instruction to the jury: “The court instructs the jury that if they find from the evidence in this case that the defendants T. H. Harvey and Z. T. Vinson were indorsers of the note in suit, and were resident in the same city or town where demand for the payment of said note was made, and if they further find from the evidence that no notice of protest was personally given to or left at the dwelling house or place of business of said indorsers, then said indorsers, Harvey and Vinson, are not liable, and the verdict of the jury must be for them.” The plaintiff objected to the giving of said instruction to the jury. The court overruled said objection and gave said instruction, to which ruling the plaintiff again exceptedj and thereupon the plaintiff applied for and obtained this writ of error.

The sole question presented for our consideration is whether the defendants T. H. Harvey and Z. T. Vinson were legally and properly served with notice of the protest of the note sued upon, so as to bind them as endorsers of the same.

The facts in regard to the protest and notice are as follows: On the day said note matured, it was presented at the counter of the First National Bank of Huntington, and payment thereof was demanded, and, being refused, it was protested by E. B. Enslow, a notary public, who prepared notices of the protest, in closed them all in one envelope, and mailed them to the cashier of the Big Sandy National Bank at Catlettsburg, Ky., which bank was the owner and holder of said note, on the 13th of April, 1891, at 6 o’clock p. m., which notices were received by said cashier the next morning after the protest, and were mailed by him on the same day to Thomas H. Harvey and Z. T. Vinson, directed to Hunting-ton, W. Va., but were never received by them.

In considering the questions presented in this record, I shall first inquire what are the duties of a bank to which a negotiable note is endorsed by the holder for collection with reference to said note when the same matures. Daniel on Negotiable Instruments (volume 1, § 331) says: “Sometimes a bank holding endorsed paper for collection sends notice in the event of its dishonor to the endorser from whom it was received. Sometimes it sends notices, not only to him, but also to the drawer and to all the indorsers, addressed to their post offices, or delivered at their places of business, respectively. Sometimes it incloses notices for all the parties entitled thereto under one envelope, in company with notice to the last endorser, that he may thus be conveniently supplied with the means of transmitting notice to the successive indorsers, and to the drawer antecedent to him, if such there be. But how far the duty of the bank extends in this regard, and what it must do to discharge itself of liability, is a question upon which opinion has divided. The weight of authority, however, is strongly to the effect, and the law may be assumed to be, that it is only necessary for the bank to notify its "immediate predecessor — that is, the party from whom it received the paper — no matter what may be the nature of the title or interest of that party to or in it.” So it was held in the case of Phipps v. Bank 8 Metc. (Mass.) 79, that “a bank that receives from another bank for collection a note indorsed by the cashier of that bank is bound to present it to the maker for payment at maturity, and, if it is not paid to give notice of non-payment to the bank from which the note was received; but it is not bound, unless by special agreement, to give such notice to the other parties to the note.” Edwards on Bills and Notes (volume 2, § 834) says: “The holder should give notice of dishonor to all the parties to whom he intends to look for payment, but it is enough for him to send or gire due notice to his indorsers for the purpose of charging the party indorsing the bill over to him, and it is the business of each indorser to take care that the party responsible tp him is duly notified.” Again, in the case of Bank v. Goddard, 6 Mason 366, Fed. Cas. No. 917, it was held that “where a note is made payable at a particular place, and the indorse^ resides there, if the holder remits it to his agent at such place for payment, and it is dishonored, the agent is not bound to give notice of the dishonor to the indorser, but his duty is to gire notice to his principal, who may then give notice to the endorser, and, if given in due time after the principal has received notice, the indorser is bound.” In the case of Phipps v. Bank, supra, the court in speaking of the case of Bank v. Goddard, says: “The case was thoroughly argued, and an elaborate opinion given by the learned judge of the Circuit Court of the United States, in favor of the plaintiffs, that the agent was not bound to give notice of dishonor to the indorser, even though living in the same place, but only to his principal.” In the case of Howard v. Ives, 1 Hill 203, “where IT., an indorsee of a bill of exchange, indorsed it to a bank for the mere purpose of collection, and the notary employed by the bank transmitted notice of protest by mail to IT. on the next business day after presentment, etc., who on the next day after receiving it mailed notice to his indorser, held sufficient to fix the liability of the latter, though, had the notice been sent directly to him, he would have received it sooner; a¿id this semble whether the notary be regarded as H.’s agent or that of the bank.” We also fin'd it held in the case of Mead v. Engs, 5 Cow. 303, that “one to whom a bill or note is endorsed merely as agent to collect (e. g. a bank) is a holder for the purpose of giving and receiving notice of non-payment; and he is not bound to give notice of non-payment directly to all prior parties, but may notice his next immediate indorser, who is bound to notice his indorser, etc., in the same manner as if the bill or note had been negotiated for a valuable consideration.” And in this connection attention may be called to the fact that the Bank of Huntington is not a party defendant to this suit, and no effort is made in tbe case to fix responsibility upon it or to obtain judgment against it. And, again in tbe case of Philipe v. Harberlee, 45 Ala. 597, it was beld that “notice of tbe protest of a note or bill of exchange may be given to an indorser through tbe post office, notwithstanding tbe place where payment was to be made, and where the demand and protest were made, was that of his residence, when the holder, who is the owner, lives elsewhere.” And upon this question, in New York, in the case of State Bank of Troy v. Bank of the Capitol, 41 Barb. 343, it was held that “in the case of a bill or note sent to a bank as agent for collection merely, in the absence of an express contract or of commercial usage, it is not obligatory on the collecting bank to notify and duly charge all the prior parties to the paper, but only its own principal or immediate indorser.” And, upon this question, see Bank v. Smith, 132 Mass. 227 and Spencer v. Ballou, IS N. Y. 327; 3 Rand. Com. Paper, §§ 1240, 1241. In section 1240 it is said: “Notice may be transmitted from one indorser to another, and so back to the drawer of the bill, however circuitous the manner of giving notice may be. A nd such a notice is sufficient, although the holder and the remote party may live in the same town.” And in section 1241 the law is stated to be that “an agent for collection is only required to give notice of dishonor to his principal.” And in 2 How. 66, it is held, in Burke v. McKay: “Neither is it a necessary part of the official duty of a notary to give notice to the indorser of the dishonor of a promissory note.”

Now, the evidence in the case under consideration shows that the note in controversy was discounted by the Big Sandy National Bank of Catlettsburg, Ky.; that it was presented there by W. H. Crum, who got the money on it; that said bank sent said note to the bank of Huntington for presentment; that the defendant Z. T. Yinson was a-resident of the city of Huntington; and that T. H. Harvey resided near the city of Huntington, W. Va., and received his mail at that place. When said note had been presented, on the day of its maturity, at the first National Bank of Huntington, and payment had been refused, said note was duly protested, as above stated, and notices sent to the Big Sandy National Bank; and, the same day said notices were received, they were placed in separate envelopes, properly stamped, and directed, one to Z. T. Vinson, and another to T. H. Harvey, at Huntingdon, W. Va.; and they state in their testimony that they never received either of said notices. It is true that the cashier of the Big Sandy National Bank is uncertain as to the date when he received said notices, and says that' it may have been the 17th or 18th of April. The protest was on the 13th of April, 1891, but he states on cross-examination that he received them the next morning after the note was protested, and that he mailed the notices of protest to said Harvey and Vinson on the same morning.

Under this state of facts, did the Circuit Court err in refusing to give the instruction asked for by the plaintiff, and in giving the instruction asked for by the defendants, both of which are set forth above, and present in a few words the true controversy in the case? The defendants Harvey and Vinson contend that under the circumstances, unless notice of protest was personally given to them, or left at their dwelling house or place of business, they were released from their liability as indorsers of said note; while the plaintiff, on the other hand, contends that it had a right to send the notice of protest as it did through the mail, and thereby hold them as indorsers, whether they received them or not. ' 1

Parsons, in his work on Mercantile Law, at page 115, says: “Each party receiving notice has a day or until the next post after the clay in which he receives it before he is obliged to send the notice forward. Thus, a banker with whom the paper is deposited for collection is considered a holder, and entitled to a day to give notice to the depositor, who then has a day for his notice to antecedent parties.” Now, while it is true that a bank to which a note is indorsed for collection is such a holder that it may give notice to all prior indorsers upon the note, yet, as we have seen, it is not bound so to do. All that is required of such bank is to give notice to its immediate indorser; and in this instance the indorser to whom the Bank of Huntington was bound to give notice did not reside at Huntington, but at Catlettsburg, Ky. Therefore the notice could he giren through the mail. When the bank at Gatlettsburg received such notice, then the duty devolved upon it to notice the prior in-dorsers if it wished to hold them, which it did by placing notices in the mail the same day on which it received notice, to wit, the next day after the protest; and, if said bank had the right to do this, it bound said Vinson and Harvey, whether they received the notices or not. In 2 Rob. Prac. (New) at page 192, we find it stated that “it has been held by the Supreme Court of Pennsylvania and by the Supreme Court of the United States that notice to a party put into the post office of the town wherein the presentment and demand are made will be sufficient when he lives beyond the limits of the town, a.nd it may be directed to him at that town if its post office be the nearest to his residence, and that at which his letters are received;” citing Bank v. Lawrence, 1 Pet. 580; Jones v. Lewis, 8 Watts & S. 14.

In the case we are considering, the indorser Harvey did not- reside in the city of Huntington, but received his mail at Huntington. The indorser Vinson, however, did reside in the city of Huntington, and the question is whether, so residing, he was entitled to personal service of notice; and, if there was any party in the city of Huntington who was bound to give him notice of the dishonor of said note, he, perhaps, would be entitled to personal service, either at his residence or place of business, although in the case of Boyd’s Adm’r v. City Sav. Bank, 15 Gratt. 501, it was held that where “an indorser of a negotiable note dies intestate before it falls due, and, when it falls due, it is regularly protested for non-payment, and, no person having then qualified as administrator on the estate of the indorser, the notary on the same day deposits in the post office at Lynchburg, where the note had been made payable and discounted, the notice of protest, directed to the ‘legal representative’ of the in-dorser, Lynchburg, the indorser having lived in that place, and his family still living in the same house, the notice is sufficient.” Mon cure, Judge, in delivering the opinion of the court in that case said: “While it has been long and well settled that, if the parties to give and receive notice-reside in different places, the notice may be sent by mail, so in the other it seems to be well settled, at least as a general rule, that, if they reside in the same place, the notice inust be personal; that is, must be given to the individual,, or left at his domicile or place of business” — citing 1 Am. Lead. Cas. (4th Ed.) 396 and notes, and 2 Rob. Prac. (New) 191. But of late the courts have strongly inclined to restrict the general rule referred to, and have established many exceptions to it, as may be seen by referring to the case of Bank v. Lawrence, 1 Pet. 578, cited in 1 Am. Lead. Cas. 402, 403, and the notes. The law is stated thus in the-case of Linn v. Horton, 17 Wis. 157: “The holder of a bill or note may rely, if he chooses, on the responsibility of his immediate indorser, and need not give notice of protest for non-acceptance or non-payment to any previous party.” And in the case of Griffith v. Assman, 48 Mo. 66, that court held that, “when the notary making a protest knows the residence of all the indorsers, he may at once send the notice of protest to each one individually, when they will be holden in the order of their indorsements. But the holder is not supposed to know any of the parties except the one who has endorsed the paper to him, and each one is supposed to know the one from whom he has received it. The contract is direct, and the relation is immediate between each indorser and his immediate indorsee, and the notice is sufficient if it comes to each indorser from such indorsee as soon as he is advised of the protest. Nor does the rule vary although the parties live in different cities. The holder is only required to notify the one who indorsed to him, unless he desires to hold other parties who might escape responsibility if not notified in their town. Nor is there any difference if the last indorsement is for collection only.”

In the case we are considering, the last indorsement was for collection only, and notice was given to the Big Sandy National Bank, that indorsed said note for collection, on the isainé day the note was protested. Story on Bills of Exchange (Section 294) says: “Where there are numerous jiartiés in succession on the bill as drawers or indorsers, who-■are entitled' to notice, and may, as drawers or indorsers, be liable on the dishonor of the bill, not only to the holder, but to any intermediate indorser standing between him and themselves, it is apparent that, as each of such successive parties is entitled to a full day to give notice to any antecedent party in the bill, several days may elapse without any laches in any party, between the time of the dishonor and the time of notice thereof to the drawer or the other early indorsers. Nay, this may occur in respect to parties all of whom reside in the same- town; and yet if the notice is communicated to them in regular succession, making an allowance of one day for each party who receives notice to give notice to the antecedent parties, they will all be held liable, andtlie notice be deemed sufficient to bind them.” In this connection I refer also the case of Bank v. Taylor, 34 N. Y. 128, where it is held that, “the whole duty of a holder of a protested bill is discharged by notice to his immediate indorser, and all parties to the bill or note will be charged if they receive notice in due course from their immediate subsequent indorsers. When the collecting agent of the holder resides in the same city with one of the indorsers, it does not modify the rule as above stated.” The opinion of the court in •this case was well considered, and, in concluding, the following language is used: “The text writers and all the authorities I have examined concur in the doctrine that the whole duty of the holder is discharged by notice to his immediate preceding indorser, and that all prior indorsers are fixed if they receive reasonable notice of the dishonor of the bill or note from their immediate prior indorser. These rules have long been settled and familiar to those dealing •in notes and bills of exchange. It is of the utmost importance that rules of this character when once promulgated ■should be adhered to, and we are not at liberty to part from them if we would. I find no case where an exception has been made by reason of the circumstance that an intermediate indorser is a resident of the same town, city or village with the holder. If he is not the immediate prior indorser of the holder at the time of protest, the whole duty of the holder is discharged by the notice to his immediate indorser, and all parties to the bill or note will be charged if they receive notices in due course- from tbeir immediate subsequent indorsers.” See Bank v. Taylor, 7 Bosw. 466, where this-question is carefully considered and numerous authorities cited; also, 34 N. Y. 128, where the last named case was affirmed on appeal. See, also, the case of Hill v. Bank, 3 Humph. 670, in which if appears that “an agent resident in New Orleans, to whom a bill was indorsed for collection, and which was protested for non-acceptance, gave notice to-the principal, resident at Nashville, and the principal thereupon gave notice to the indorser, resident at New Orleans,' held, that this notice was good.”

In the case at bar the evidence shows that the notices to Harvey and Vinson were in due time placed in prepaid envelopes and delivered in the post office at Catlettsburg, a town about twelve miles from Huntington, between which towns the mail is carried twice a day. On this point, Parsons on Bills and Notes (page 478) says: “In other words, the sender is bound to use due diligence; and on this point it is sufficient diligence if the letter be put into the regular post office, for it can not be asked of any sender that he should have any oversight of or interference with the public service of the post office; and therefore he is held to no liability for accident there, however it may happen” — citing numerous-cases in note. Now, it is true that in the case of Insurance Co. v. Wilson, 29 W. Va. 528 (2 S. E. Rep. 888) Woods, Judge, in delivering the opinion of the Court, on page 546, 29 W. Va, and page 888, 2 S. E. Rep., says: “When a negotiable note is dishonored, it is the duty of the holder to give immediate notice of such dishonor to the indorser;” and that, “when the indorser resided in the same town where the demand is made, the notice must be personal, or left at his dwelling house, or place of business.” And the same is held, in substance in the case of Bowling v. Harrison, 6 How. 248. Jt is there held that, “where the holder of a protested note and the party entitled to notice reside in the same city or town, notice should be given to the party entitled to it, either verbally or in writing, or a written notice must be left at his dwelling house or place of business.” A party, however, †0 he entitled to such notice, must be one to whom the holder residing in such city or town was bound to give notice; and in the case of Insurance Co. v. Wilson, supra, speaking of the mode of service upon an indorser, what in-dorser is intended and referred to? Surely, it was and is intended that the indorser to be so personally served with notice is the one that the holder was hound to serve notice upon; hut, as we have seen, the Bank of Huntington, which was the holder-in the city of Huntington, which held the note by indorsement from the Big Sandy National Bank for the purpose of collection, was not bound to serve notice upon either Harvey or Vinson, but was only bound to give notice to its immediate indorser, the Big Sandy National Bank; and, when that was done, its whole duty with reference to said note was performed, and the duty then devolved upon the Big Sandy National Bank to give notice to the prior in-dorsers in due time, if it wished to hold them. This last named bank was the holder for value, the real OAvner of the note, having discounted it; and when it undertook to give notice to the prior indorsers, and among them Harvey and Vinson, residing in a different town from the location of said bank, all that avus required of it Avas to properly mail such notice in due time, directed to said Harvey and Vinson, respectively, addressed to each of them at Huntington, where they receive their mail; and, having done this, said indorsers would not be released as such, although the notice was never received.

Tn the case of Bowling v. Harrison, supra, it is also held that the term “holder” includes the bank at which the note is payable and the notary who may hold the note as the agent of the owner for the purpose of making demand and protest. In this case the note was sent, as is the almost uniform custom, to the bank at which it was payable for collection; and, as Ave have seen, the bank to which a note is thus sent is a holder to such an extent that it may give notice to the indorsers; and, if it undertake to do so, an in-dorser residing in the same city or town is entitled to personal service, but it is not bound to give such notice, and, as I think the weight of authority shows, it is only bound to give notice to its immediate indorser., and, if such in-dorser wishes to give notice to prior indorsers, he may do so through the mail if such indorser resides at a different place, even though such indorser may reside in the same town in which the bank is located to which it was sent for collection; and, as to the duty of the notary, in the case of Burke v. McKay, 2 How. 66, it is held that “it is not a necessary part of the official duty of a notary to give notice to the indorser of the dishonor of a promissory note.”

I therefore think that the Circuit Court erred in rejecting the instruction asked for by the plaintiff, and in giving the instruction asked for by the defendants, and in rendering the judgment complained of, releasing and exonerating said Harvey and Vinson as indorsers upon said note. The judgment complained of is therefore reversed as far as it exonerates said Harvey and Vinson from liability as indors-ers upon said note, and the verdict of the jury is set aside so far as it finds,for the defendants T. H. Harvey and Z. T. Vinson. A new trial is awarded as to them, and the case is remanded to the Circuit Court of Cabell county, for further proceedings to be had therein, with costs to the plaintiff in error.