Eagle Bank at Providence v. Hathaway

46 Mass. 212

Opinion

Shaw, C. J.

Several exceptions were taken by the defendant, at the trial; but the only one brought before the rr'|irt in the argument is, whether, under the circumstances, notice given to the defendant, through the post office, was sufficient to charge him as indorser.

We suppose it well settled by the usage and practice of merchants and bankers in the United States, that where bills and notes negotiable are indorsed and transmitted from one to another successively, whether it be upon actual negotiation for valuable consideration, or only for the purpose of collection, it is competent for the holder to send notice to his immediate indorser, and if each transmits notice after he himself has seasonably received it, the indorsers are severally liable, although the notice does not reach the earlier indorsers, quite so soon, as if it were transmitted to each indorser at once, by the party who is holder at the time of dishonor, or by the notary employed by such party.

*

Then the question is, supposing this notice, thus duly and seasonably made out by the Philadelphia notary, addressed to the defendant, and enclosed to Mr. Ward well, the cashier of the plaintiff bank, whether it was sufficient, if sealed and deposited by him in the post office of the same town where that bank was established.

It seems to be well settled by decided cases, that where the •transaction, which is to be notified, takes place in the same town, in which the party to whom notice is to be given resides, such notice must be personal, or at his domicil or place of business. Bayley on Bills, (2d Amer. ed.) 277. Davis v. Gowen, 1 Appleton, 447. Peirce v. Pendar, (post. 352.) And it is equally well settled by similar authority, that when the party resides in another town, notice by the post office is sufficient. Munn v. Baldwin, 6 Mass. 316. So it has been held, that in such case notice by mail is so far conclusive, that it is sufficient, though the notice was in fact never received. Shed v. Brett, 1 Pick. 401. But the present case does not come strictly within either of these classes. The transaction to be notified did not occur in the same town ; but Wardwell, from whom the notice was last forwarded, did live in the same town.

Were it an original question, it is far from certain that notice by the post office would not frequently reach an indorser as soon, and as certainly, as notice at his domicil. Perhaps in large commercial cities, where bankers, merchants, and active men of business usually send to the post office several times a day, notice by the post office would be as prompt as any other. In smaller communities, however, and places more sparsely settled, such notice might be likely to linger in the post office. But it is not a new question. A long course of judicial decisions, either following or governing the usage of merchants and men of business, has settled it. But it is thus settled by positive law, only so far as the cases are within it; and the present is not On the whole, as the transaction to be notified to the, defendant took place in Philadelphia ; as notice to him by mail, either from there, or from New York, when the draft got back to the indorser there, would have been good ; as Wardwell was the conduit of conveyance, and not the party from whom the notice emanated ; as the defendant, if he were looking for notice of the dishonor of this bill of exchange, payable in Philadelphia, would naturally look to the post office for that notice ; we are of opinion that notice by the post office, under these circumstances, must be deemed good.

Judgment on the verdict.

See Johnson v. Harth, 1 Bailey, 482. Carter v. Burley, 9 N. Hamp. 559. Farmer v. Rand, 4 Shepley, 453. Freeman's Bank v. Perkins, 6 Shepley, 292, Northern Bank v. Williams, 8 Shepley, 217. 3 Kent Com. (3d ed.) 108. Story on Bills, § 294.