Eagle Bank v. Chapin

20 Mass. 180

Opinion

Parker C. J.

gave the opinion of the Court to the follow-mg effect. It is objected, that the contents of the notice to the defendant should not have been proved by parol, he not having been called upon to produce the notice. But we do not think that rule of evidence is to be applied to such a case. A notice to an indorser relates to a few simple facts, and it has been usual to prove it without calling on the party to produce the written notice received by him ; and this course is in accordance with some of the authorities cited.¹

It is then said that the notary did not make due inquiry as to the defendant’s place of residence. It was not necessary that he should know where the indorser lived. Often the in dorsee does not know the fact, and in such case he shall not be obliged to act in the same manner as if he did.² The best thing the notary could do was to send the notice to New Haven. But it is objected, that he did not put it into the post-office in season. He was not bound to send it on Friday, for it has been decided that a man is not to neglect all other business for the purpose of giving notice to an indorser, but he shall have to the next day or the next convenient mail.³ There is indeed no direct testimony that the notice was put into the mail at New York, but this is immaterial, as it is proved to have arrived at New Haven as early as Monday morning. We discover no negligence on the part of the notary.

The defendant next objects, that it does not appear at what time the notice reached New Haven. But we are satisfied, that if the plaintiffs received it on Saturday, they were not bound to put it into the post-office again or send it by special messenger on Sunday. Neither the law nor the convenience of trade, in such a case, would require people to violate their conscientious scruples. Sunday is not to be counted. This renders it immaterial whether the notice arrived New Haven on Saturday or Sunday. On Monday the plainuffs sent a man to Hartford, with directions to ascertain the defendant’s place of residence. It results from the nature of the transaction, that the plaintiffs did not know where he lived From Hartford the notice was sent by mail as soon as it v^uld be. We think that the plaintiffs have used due diligence, and judgment must be according to the verdict.⁴

Footnotes

1

Kine v. Beaumont, 7 Moore, 112; Roberts v. Bradshaw, 1 Stark. R. 28, As to the facts, which should be stated in the notice of dishonor, see Solarte v. Palmer, 3 Moore & Payne, 475 ; S. C. 7 Bingh. 530; 1 Tyr. Exch. R. 371; Solarte v. Palmer, 1 Crompt. & Jerv. 417; Hartley v. Case, 6 Dowl. & Ryl. 505; S. C. 4 Barn. & Cressw. 339; Beauchamp v. Nash, Dowl. & Ryl. N P. C. 3, per Abbott C. J.

Notice of non-payment need not be in writing ; verbal notice is sufficient. Cuyler v. Stevens, 4 Wendell, 566.

2

See Church v. Barlow, 9 Pick. 549; Williams v. Germaine, 7 Barn. & Cressw. 468; S. C. 1 Man. & Ryl. 394.

3

Reasonable diligence and attention is all that the law exacts, and it is settled that each party into whose hands a dishonored bill may pass, shall be allowed one entire day for the purpose of giving notice. Hawkes v. Salter, 4 Bingh. 715; Firth v. Thrush, 8 Barn. & Cressw. 387; Martin v. Ingersoll, 8 Pick. 8; Talbot v. Clark, 8 Pick. 51; Haynes v. Birks, 3 Bos. & Pul. 599; Tunno v. Lague, 2 Johns. Cas. 1 ; Hartford Bank v. Stedman, 3 Connect. R. 489; Parker C. J. in Barker v. Parker, 6 Pick. 80; Bank of United States v. Corneal, 2 Peters’s Sup. Ct. R. 543; Bank of Alexandria v. Swann, 9 Peters’s Sup. Ct. R. 33.

In North Carolina the rule respecting notice is made to vary with the pursuits of the parties, and the same strictness is not required between two farmers in the country as between merchants in town. Brown v. Johnson, 1 Devereux, 293; London v. Howard, 2 Hayw. 332; Austin v. Rodman, 1 Hawks, 175. See also upon this point, Shed v. Brett, 1 Pick. 405; Crenshaw v. M‘Keiman, 1 Minor, 173; Greely v. Thurston, 4 Greenl. 479; City Bank v Cutter, post, 414; Boston Bank v. Hodges, 9 Pick. 420; Bussard v. Levering, 6 Wheat. R. 102; Lindenberger v. Beall, 6 Wheat. 104; Osborn v. Moncure, 3 Wendell, 170 ; Bixby v. Franklin Ins. Co. 8 Pick. 86; United States v. Barker, 4 Wash. C. C. R. 464 ; Townsley v. Springer, 1 Miller’s (Louis.) R. 122, 515.

The holder of a dishonored note is excused from giving notice of non-payment to the indorser on the Fourth of July. Cuyler v. Stevens, 4 Wendell, 566.

4

Reasonable notice, due diligence, &c., are questions of law to be decided by the court, as soon as the facts necessary to the decision are ascertained. Hussey v. Freeman, 10 Mass. R. 86; Whitwell v. Johnson, 17 Mass. R. 453; Atwood v. Clarke, 2 Greenl. 249; Aymar v. Beers, 7 Cowen, 705; Davis v. Herrick, 6 Ohio R. 66 ; Bank of Columbia v. Lawrence, 1 Peters’s Sup. Ct. R. 578; Taylor v. Bryden, 8 Johns. R. 173; Bryden v. Bryden, 11 Johns. R. 187; Furman v. Haskin, 2 Caines’s R. 369 ; Phillips v. M'Curdy, 1 Harr. & Johns. 187; Bell v. Wardwell, Willes, 202; Dodge v. Bank of Kentucky, 2 Marsh. (Kentucky) R. 616 ; Noble v. Bank of Kentucky, 3 Marsh. (Kentucky) R. 264; Ellis v. Paige, 1 Pick. 43; Haddock v. Murray, 1 N. Hamp. R 140; Ferris v. Saxton, 1 Southard, 1.

But it will be found in practice, that these questions are in general so involved in new combinations of circumstances and so mixed up with the ingredients of law and fact, that it must be very difficult to retain on the bench the exclusive jurisdiction of them. See Tindal v. Brown, 1 T. R. 167; Darbishire v. Parker, 6 East, 3 ; Hilton v. Shepherd, 6 East, 14, in notis; Bateman v. Joseph, 12 East, 433; Chesapeake Ins. Co. v. Stark, Cranch, 273; Taylor v. Bryden, 8 Johns. R. 173; Field v. Nickerson, 13 Mass. R. 131; Davis v. Herrick, 6 Ohio R. 66.

In Brahan v. Rayland, 1 Minor, 85, what is reasonable notice to an indorser, was held to be a' question of fact for a jury. See Robertson v. Vogle, 1 Dallas, 252; Steinmetz v. Currie, 1 Dallas, 270; Bank of North America v M‘Knight, 2 Dallas, 158; Ball v. Dennison, 4 Dallas, 165; Bank of North America v. Pettit, 4 Dallas, 129 ; Scott v. Alexander, 1 Wash. 335; Reedy v. Seixas, 2 Johns. Cas. 337.