Utica Bank v. Van Gieson

18 Johns. 485

Opinion

Spencer, Ch. J.

delivered the opinion of the Court.

The objection taken to the plaintiff’s recovery is, that the defendants ought to have had notice that Hart & Alleys note payable at the Bank of Geneva, had not been paid, before this suit was instituted against them; and if so, then that notice through the post office was not sufficient. It is not pretended that the plaintiffs were guilty of any neglect in relation to that note; and the amount claimed was paid to the defendants, upon the supposition that Hart & Allen’s note had been paid at the Bank of Geneva; but it turns out that it was not paid. The plaintiffs ground of action, then3 is, that the money was paid to the defendants under a mistake of facts. The defendants are not bailees, or trustees of the money thus received. It was paid and received, as their money, and not as money to be kept for the plaintiffs. In such a case, it was not necessary to make a demand prior to the suit; for a request was not essential to the .maintenance of the action; nor did the defendants duty to return the money erroneously paid, arise upon request.

But, we are of opinion, that were it necessary to prove notice to the defendants, of the-non-payment of Hart & Allen’s note, and, therefore, of the mistake which had happened, the proof was sufficient. In mercantile transactions, sending notice by the post, is sufficient notice to the party, on the principle of general convenience. It is every day’s practice, as to the dishonour of a note, with a view of charging the endorser; and there is no reason why the same practice should not be admitted as to other mercantile business. (Phillip’s Ev. 391. 338. 3 Campb. N. P. Rep, 379. 4 Campb. M. P. Rep. 193.)

Judgment for the plaintiffs