Moore v. Hardcastle

11 Md. 486

• Court: Court of Appeals of Maryland
• Decided: December 15, 1857
• Status: Published

Opinion

Tuck, J.,

delivered the opinion of this court.

The only question before us, on this appeal, is, whether reasonable diligence was used by the notary public, in protesting the note on which this suit was instituted, to charge the appellee as endorser?

The law is settled, that demand and notice are conditions precedent to the holder’s right to recover on a promissory note, and that the endorser is entitled to strict notice; by which is meant, not that the party charged must actually receive such notice, but that reasonable diligence shall be employed, and reasonable efforts made, to give it. The general rule is, that where the endorser lives in another place, he may be notified, through the mail, at the nearest post-office. Bell vs. Hagerstown Bank, 7 Gill, 216. There are exceptions, as where the party has a known post-office, or is in the habit of receiving letters from more than one office, (Crowley vs. Barry, 4 Gill, 194,) and others, which need not be mentioned, as this case is not shown to be without the operation of the general principle: “If sufficient inquiries have been made, and information re ceived, upon which the holder has a right to rely, a mistake • as to the nearest post-office, or usual post-office, does not deprive him of his remedy.” Lambert vs. Ghiselin, 9 How., 552 Sasscer vs. Whitely, 10 Md. Rep., 98.

Applying this test, it is very clear that the court below decided correctly as to the legal insufficiency of the evidence set .out in the bill of exceptions, to show notice to the appellee. The note was protested at Easton, of which the notarial protest was the only evidence offered, and the notary was examined to prove that notice of protest was sent to the endorser. This witness says, “That he sent the notice by mail, addressed to the appellee at Denton, Caroline county, because he knew that he resided in that county, but did not know his particular residence and post-office, ” It appears that he lived twelve miles from Denton, and that his nearest and usual post-office was only four miles from his residence, which was nearer, by three miles, to Easton, where the protest was made, than to Denton, to which the notice was sent. We are not informed, by the record, that the notary made inquiry any where, or of any person, as to the residence or post-office of the endorser. It would be a plain perversion of the law to charge him on such evidence of notice.

But it is said, that the defendant’s letter is evidence that hollad received notice of protest; and, also, of a promise to pay the debt. We think that it is clearly insufficient for the first purpose, because there is no mention of the protest or notice, and nothing from which it can be inferred that he had received such notice. It would seem that his first knowledge that the note had not been paid, was received from the plaintiff’s attorney, for the purpose of the letter appears to have been to-inform the plaintiff that, inasmuch as he had declined the compromise offered to the attorney, he would not pay any thing.

As to the effect of this letter as a promise to pay the debt, which, it is said, is a waiver of procjf of notice, we may remark, that, while we think it also insufficient for that purpose, the point argued here, in this view of the letter, is not presented by the exception. The prayer offered and granted by the court, relates only to the legal sufficiency of the evidence adduced by the plaintiff, that the defendant had been duly notified of the dishonor of the note, and not to this letter as a waiver of any defence for want of due diligence on the part of the plaintiff', in giving such notice.

Judgment affirmed.