Boyd v. Orton

16 Wis. 495

• Court: Wisconsin Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

By the Court,

Paine, J.

This action was brought against the appellant' as an indorser of a promissory note. The note was drawn payable “to the order of J. J. Orton and Alanson Lewis,” and was indorsed by them. It was dishonored, and there is no dispute that the" appellant received due notice But a short time before the note fell due, Lewis had died, and the appellant defends upon the ground that proper steps were not taken to notify bis representatives, claiming that thereby the appellant, as a joint indorser with him, was discharged. It was conceded on the argument, that when a note'is indorsed by a partnership, notice to either will charge all; but the appellant denies that this rule prevails in respect to mere joint indorsers, and claims that both must be notified to charge. The authorities seem to sustain this.rule. But we think in this case the evidence shows due diligence on the part of the notary to give notice to the. representatives of Lewis, which is all that is required. He made inquiries for the period of three days before the note fell due; he learned that Lewis was dead, that he had no family except a wife, and that she had gone to Canada and was with her father; nor could he learn of any executors or administrators. He made these inquiries in the ward where Lewis had resided, and of persons who he thought, would be most likely to know. After this he deposited two notices in the póst-office, at Milwaukee where Lewis had resided and d-ied, one in an envelop addressed to Allison Lewis, and the other addressed to his executors or administrators. It is diffcult to understand what more could have been done. All that was suggested was, that the notice might have been left at the house where Lewis had resided; and this was based upon the testimony of the appellant, who said that after he returned from the east he went to the house where Lewis had lived, and the servant who had lived with Lewis was there, and remained there sometime afterwards. But this is far from showing that the house could then be regarded as the residence of Lewis’ family; and there was no pretense that his wife ever returned there to live. Nor does the appellant himself state that this servant remained there in any capacity as servant or agent for the family. His t estimony raises no presumption that the notice should have been left at the house. And we think that the notary after learning the facts that he did, was authorized to presume that the family was broken up, and had no longer any residence in Milwaukee, and he was not bound to go to the house to see if be could perchance find a hired girl who bad once lived with the deceased. It appeared subsequently that Orton himself was one of the executors of the will of Lewis, and Orton bad notice of the dishonor of this note. But whether that would be sufficient to charge him with notice as executor, we shall not determine, being satisfied that the notary used due diligence to notify the representatives of Lewis.

The judgment is affirmed.