Granite Bank v. Ayers

33 Mass. 392

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1835
• Status: Published

Opinion

Shatv C. J.

delivered the opinion of the Court. It is extremely doubtful, if it were necessary to decide the case upon that ground, whether the plaintiffs would not fail on the ground of want of sufficient notice to the defendant as indorser, of the non-payment of this note by the promisor on presentment. It appears, that though the defendant had a place of business, the notice was not left at that place, but at the shop of a neighbour. The excuse is, that on the day the notice was thus left, the defendant was out of town, and that he received the notice the next day, or the day after. Now though a man is out of town, yet if he has a domicil, or place of business, it is to be presumed, that he will leave some person charged with the care of his business, or at least some one between whom and himself there is a privity or confidence. It is upon this principle, that all notices at one’s domicil, and all notices respecting transactions of a commercial nature at one’s known place of business, are deemed in law to be good constructive notice and to have the legal effect of actual notice.

But we have not thought it necessary to go more at large into that part of the case, because we are all of opinion, that the evidence proves no sufficient presentment of the note to the promisors, and demand of payment of them.

The firm of Poor & Co. consisted of Poor and Breeden. They had failed and given up their place of business, and the same place had been let to strangers, between whom and Poor & Co. there was no privity ; and no inquiry was made except at that place ; and there the notary vyas informed, that Poor & Co. had failed and gone out of town. But the information was not correct. By referring to the name of Samuel Poor & Co. in the Directory, it would have been found that Breeden was the partner indicated by the word “ Co.” ; and by reference to the name of Breeden, it would have been found that be had a domicil in town ; and it is now found that he was in fact residing in town.

It is no excuse for want of such presentment and demand, that the promisors had failed. As the plaintiffs cannot recover without proof of demand and notice, or some fact wnich will excuse the want of a demand, and is the proof fails of showing any demand or any legal excuse for the want of it, the plaintiffs are not entitled to recover.

Plaintiff's ncnsuit.