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§ 186 a. When not necessary.
If the bill or note has been received by the holder merely as a collateral security, the party from whom he received it being neither drawer nor indorser, nor the transferrer of it by delivery, if payable to the bearer, the holder is not bound to prove a strict presentment of the bill or note; nor will the other party be exonerated from the debt collaterally secured by the delivery of such bill or note, unless he can show that he has actually sustained some damage or prejudice by such nonpresentment. And the same rule applies to a party who is a mere guarantor of a bill or note; the burden of proof being in both these cases on the debtor, or the guarantor, to show an actual loss, or prejudice to his remedy over.
§ 187. Time and mode of notice. Where the notice is sent by post, it need not be sent on the day of dishonor, but it should go by the next practicable post after that day, having due reference to all the circumstances of the case. But if the action is commenced on the same day on which the notice is sent (as it well may be :), the burden of proof being on the plaintiff to show that the right of action was complete before the suit was commenced, he must prove, not only that the notice was sent, but that it reached its destination before process was sued out. For the rule of law is, that where there is a doubt which of two occurrences took place first, the party who is to act upon the assumption that they took place in a particular order, is to make the inquiry. The same rule applies to successive indorsers ; each one being generally entitled to at least one full day after he has received the notice, before he is required to give notice to any antecedent indorser, who may be liable to him for payment of the bill or note. (a) Sunday, not
1 Story on Bills, § 372 ; Story on Promissory Notes, $ 485 ; Hitchcock v. Hum. frey, 5 M. & G. 559; Oxford Bank v. Hayes, 8 Pick. 423 ; Talbot v. Gay, 18 Pick. 534 ; Gibbs v. Cannon, 9 8. & R. 202 ; Phillips v. Astling, 2 Taunt. 206. Where notice to a guarantor is requisite, it will be seasonable if given at any time before action brought, if he has not been prejudiced by the want of earlier notice. Ibid. ; Bab. cock v. Bryant, 12 Pick. 133 ; Salisbury v. Hale, Id. 416 ; Walton v. Mascall, 13 M. & W. 72.
2 If the notice be put in the post-office in due time, the holder of the bill or note is not prejudiced, if, through mistake or delay of the post-office, it be not delivered in due time. Woodcock v. Houldsworth, 16 M. & W. 124.
Greely v. Thurston, 4 Greenl. 479. 4 Castrique v. Bernabo, 6 Ad. & El. n. 8. 498.
6 Story on Bills, $$288, 291, 297, 298, 384, 385 ; Bayley on Bills, pp. 268, 270 (5th ed.) ; Chitty & Hulme on Bills, pp. 337, 482 (9th ed.). If there are two mails
(a) This is true, though one of the to give notice to his predecessors. Myers holders takes the note for collection only. v. Courtney, 11 Phila. 343. Each one of the holders has a day in which
being a business-day, is not taken into the account, and notice on Monday, of a dishonor on Saturday, is sufficient.1
§ 187 a. Same subject. Agency. If the bill or note has been transmitted to an agent or banker, for the purpose of obtaining acceptance or payment, he will be entitled to the same time to give notice to his principal or customer, and to the other parties to the instrument, as if he were himself the real holder, and his principal or customer were the party next entitled to notice; and the principal or customer will be entitled, after such notice, to the like time, to give notice to the antecedent parties, as if he received notice from a real holder, and not from his own banker or agent. In short, in all such cases, the banker or agent is treated as a distinct holder. And a central or principal bank, and its different branches, are also treated as distinct holders, in regard to bills and notes transmitted from the one to the other for presentment or collection.3
$ 188. Same subject. Residence. If the parties reside in or near the same town or place where the dishonor occurs, the notice, whether given verbally, or by a special messenger, or by the local or penny post, should be given on the day of the dishonor, or, at farthest, upon the following day, early enough for it to be actually received on that day. But where both parties reside in the same town or city, the rule is, that the notice must be personal; that is, must be given to the individual, in person, or be left at his domicile or place of business; for in such case it is not competent for the holder to put a letter into the post-office and insist upon that as a sufficient notice, unless he also proves that it did in fact reach the other party in due season; for it will not be presumed.” (a) on the same day, notice by the latest of them is sufficient. Whitwell v. Johnson, 17 Mass. 449, 454. See also Chick v. Pillsbury, 11 Shepl. 458. And if there are two post-offices in the same town, notice sent to either is, prima facie, sufficient. Story on Bills, $ 297 ; Yeatman v. Erwin, 3 Miller (La.), 264. So is notice sent to any post. office, to which the party usually resorts for letters. Bank of Geneva v. Howlett, 3 Wend. 328 ; Reid v. Paine, 16 Johns. 218 ; Cuyler v. Nellis, 4 Wend. 398.
Eagle Bank v. Chapin, 3 Pick. 180 ; Story on Bills, S$ 288, 293, 308, 309. 2 Story on Bills, $ 292 ; Story on Promissory Notes, $ 326. 3 Clode v. Bayley, 12 M. & W. 51.
* Story on Bills, $ 289 ; Chitty & Hulme on Bills, pp. 337, 472, 473 (9th ed.) ; Grand Bank v. Blanchard, 23 Pick. 305 ; Seaver v. Lincoln, 21 Pick. 267.
5 Story on Promissory Notes, $ 322 ; Eagle Bank v. Hathaway, 5 Met. 215 ; Peirce v. Pender, Id. 352 ; 3 Kent, Comm. 107 (5th ed.); 1 Hare & Wallace's Leading Cases,
(a) Phipps v. Chase, 6 Met. (Mass.) 492. Bank v. Russell, 4 Gray (Mass.), 169, by Whether the rule stated in the text may, Shaw, C. J. In a large commercial city, perhaps, under peculiar circumstances, ad. where the parties live within the limits of mit of exceptions, qucere. See infra, Cabot a penny post, by which the party to whom
And a custom among the notaries of a city to give notice in such cases through the post-office will not control this rule.1 But a by-law or usage of a bank, establishing this mode of giving notice, will bind parties to bills or notes made payable to such bank.
$ 189. Contents of notice. It will be sufficient if the note or bill described in the notice, substantially corresponds with that described on the record. A variance in the notice, to be fatal, must be such as conveys to the party no sufficient knowledge of p. 254. In respect to this rule, the term “holder" includes the bank at which the note is payable, and the notary who may hold the note as the agent of the owner, for the purpose of making demand and protest. Bowling v. Harrison, 6 How. S. C. 248.
1 Wilcox v. McNutt, 2 How. (Miss.) 776.
2 Renner v. Bank of Columbia, 9 Wheat. 581; Jones v. Fales, 4 Mass. 245; 1 Hare & Wallace's Leading Cases, pp. 254–256 ; Chicopee Bank v. Eager, 9 Met. 583.
a notice is to be given is accustomed to re- entirely distinct names, as post-offices." ceive his letters, a notice deposited in the And after mentioning the decision in post-office is sufficient. Walters v. Brown, Chicopee Bank v. Eager, 9 Met. (Mass.) 15 Md. 285. Where there is a general de- 585, sup., note 2, he says, “The court livery of mail matter by messengers, and there held the notice (by mail) good, but a letter is put into the post-office to be placed the decision upon the ground of transmitted to a party resident in the same usage, which brought the case clearly town, and not merely deposited till called within the rule as established by the adfor, it is probably sufficient. Shelburne, judicated cases, and so it became unneces&c. v. Townsley, 102 Mass. 177. But a sary to give an opinion whether such a drop-letter, when there is no general de notice would have been good or not, withlivery in the town where the party to out such usage. Had the fact of usage whom the letter is addressed usnally re- been otherwise, or the defendant not been ceives his mail matter, is not the equiva- held to have assented to it, upon the genlent of mailing a letter in another town eral principles previously laid down on the to his address. Ibid.
subject, there would have been at least In commenting on this rule, Shaw, C. J., plausible ground for arguing that the in Cabot Bank v. Russell, 4 Gray (Mass.), notice was good." 169, says: “Even the rule that where Where there are two post-offices in a notice is to be given to an indorser in the town, notice by letter to an indorser, same town, it must be personal and ought addressed to him at the town generally, is not to be by mail, which seems to be as sufficient, unless the party has been genernearly fixed by judicial decision as such ally accustomed to receive his letters at rule can be, may perhaps, under peculiar one of the offices in particular. The plaincircumstances, admit of exceptions. Shall tiff makes out a prima facie case by prov. the party notifying and the party to being notice by letter addressed to the notified be held to live in the sanie place defendant at the town generally. The dewithin this rule, because they live within fendant may rebut this by showing that the territorial limits of one of the large he usually receives his letters at one office townships of New England, and all under only, and that this might have been one municipal government and known by known by reasonable inquiry at the place one name as a town, but where there are where the letter was mailed. Morton v. several distinct villages, each with its post- Westcott, 8 Cush. (Mass.) 427. See also office, churches, school-houses, and other Manchester Bank v. White, 30 N. H. 456; incidents of a distinct community ? Such Manchester Bank v. Fellows, 28 Id. 302; towns exist having many post-offices, to Windham Bank v. Norton, 22 Conn. 213. the extent of eight or more, one bearing A notice addressed to “Mrs. Susan Collins, simply the name of the town, others with Boston,” is prima facie sufficient to charge the name of the town and with some local her as an indorser, if she lived in Boston. designation, as 'east, north,' 'upper,' True v. Collins, 3 Allen (Mass.), 438. or lower,' and the like, and others with
the particular note or bill, which has been dishonored. If it does not mislead him, but conveys to him the real fact without any doubt, the variance cannot be material, either to guard his rights, or to avoid his responsibility. Thus, where the written notice, giren on the 22d of September, described the note as dated on the 20th of the same month payable in sixty days, whereas in fact it bore date on the 20th of July, but it appeared that there was no other note between the parties, this was held sufficient, the note being otherwise correctly described.2 So, where the bill was payable at the London Joint-Stock Bank, but in the notice it was described as payable at the London and Westminster JointStock Bank, which was shown to be a different bank, yet it was held sufficient. So, where there was but one note between the parties to which the notice could apply, but the sum was erroneously stated in the notice, it was held sufficient. And in such cases, the question is for the jury to determine, whether the defendant must or may not have known to what note the notice referred.5 (a) $ 190. When notice unnecessary.
The plaintiff, however, need not prove notice of the dishonor of a bill or note if the defendant has waived his right to such notice, or has admitted it. This may be shown not only by an express waiver, or admission, but, as against the drawer it may be inferred from circumstances amounting to it, such as an express promise to pay the amount of the bill or note, even though conditional as to the mode of payment; or, a partial payment; or, any acknowledgment by the drawer, of his liability to pay.® (6) But the promise or partial
1 Mills v. Bank of United States, 11 Wheat. 431, 435 ; Saltmarsh v. Tuthill, 13 Ala. 390.
2 Mills v. Bank of United States, 11 Wheat. 431, 435.
8 Bromage v. Vaughan, 10 Jur. 982. See also Bailey v. Porter, 14 M. & W. 44 ; Rowlands v. Springett, Id. 7 ; 9 Jur. 356.
4 Bank of Alexandria v. Swann, 9 Pet. 33, 46, 47 ; Stockman v. Parr, 1 C. & K. 41 ; 11 M. & W. 809.
5 Smith v. Whiting, 12 Mass. 6; Bank of Rochester v. Gould, 9 Wend. 279; Ready t. Seixas, 2 Johns. Cas. 337.
Story on Bills, § 320 ; Hopkins v. Liswell, 12 Mass. 52; Thornton v. Wynn, 12 Wheat. 183; Martin v. Ingersoll, 8 Pick. 1 ; Creamer v. Perry, 17 Pick. 332 ; Cen
(a) See also Housatonic Bank v. Laflin, 18 Barb. (N. Y.) 187 ; Shelton v. Braith5 Cush. (Mass.) 546; Crocker v. Getchell, waite, 7 M. & W. 436; Stockman v. Parr, 10 Shep. (Me.) 392; Wheaton v. Wilmarth, 11 Id. 809. 13 Met. (Mass.) 422; Clark v. Eldridge, (6) Bundy v. Buzzell, 51 Vt. 128. In Id. 96; Cayuga Co. Bank v. Warden, i Maine, by Stat. 1868, c. 152, R. S. c. Comst. (N. Y.) 413; Dennistoun v. Stew. 32, § 10, no waiver of demand and notice art, 17 How. (U. S.) 606; Youngs v. Lee, by an indorser of any promissory note payment, to have this effect, must be made with a full knowledge of all the facts, must be unequivocal, and amount to an admission of the right of the holder. So, the acceptance, by the indorser, of adequate collateral security from the maker, or accepting an assignment of all the maker's property, for this purpose, though it be inadequate, has been held a waiver of notice, if taken before the maturity of the note ;(a) but not if taken afterwards.3 Nor is an assignment of property to trustees, for the security, among others, of an indorser, sufficient to dispense with proof of a regular demand and notice. And even an express waiver of notice will not amount to a waiver of a demand on the maker of the note. A known usage may also affect the general law on this subject. Thus, if a note is made payable at a particular bank, tral Bank v. Davis, 19 Pick. 373; Warder v. Tucker, 7 Mass. 449; Boyd v. Cleaveland, 4 Pick. 525 ; Farmer v. Rand, 2 Shepl. 225 ; Ticonic Bank v. Johnson, 8 Shepl. 426 ; Levy v. Peters, 9 S. & R. 125 ; Fuller v. McDonald, 8 Greenl. 213 ; Chitty Hulme on Bills, p. 660 (9th ed.) ; Lawrence v. Ralston, 3 Bibb. 102 ; Ritcher v. Selin, 8 S. & R. 438 ; Pierson v. Hooker, Johns. 71 ; Campbell v. Webster, 2 M. G. & S. 258, and cases there cited ; Walker v. Walker, 2 Eng. 542 ; Washer v. White, 16 Ind. 136. Whether the evidence establishes the fact of a waiver, or admission, is a question for the jury. Union Bank of Georgetown v. Magruder, 7 Pet. 287. Parol evidence of statements verbally made by the indorser, at the time of a blank indorsement of a note, though not admissible to vary the contract which the law implies from the indorsement, are admissible to show a waiver of a demand and notice. Sanborn v. Southard, 12 Shepl. 499. In Texas, parol evidence of a waiver of the right to due diligence in the holder is inadmissible. . Hartley's Dig. art. 2526.
2 Bond v. Farnham, 5 Mass. 70 ; Andrews v. Boyd, 3 Met. 434 ; Mead v. Small, 3 Greenl. 207.
3 Tower v. Durell, 9 Mass. 332. 4 Creamer v. Perry, 17 Pick. 332.
5 Berkshire Bank v. Jones, 6 Mass. 524 ; Backus v. Shepherd, 11 Wend. 629. or bill of exchange is valid unless it gaged property but failed to sell it or pay is in writing signed by such indorser or the note, but often told plaintiff he would his lawful agent. It was held in Parshley take care of the note. There was no eviv. Heath, 69 Me. 90, that when an in- dence that a demand was made and notice dorser writes “ waiving demand and no. of non-payment given to the indorser, but tice" on a note above his signature, and the holder contended that there was eviother indorsers merely write their nanies, dence which would justify the jury in find. they adopt the waiver of demand and no- ing that the indorser had waived demand tice and will be bound by it. If any one of and notice. The court rejected the evithem wishes not to adopt it, he should dence, but on appeal its decision was rewrite, “requiring demand and notice" over versed, and the court above affirmed the his signatures. This is perhaps an extreme doctrine of the text, that the oral promise of
As to circumstantial evidence in an indorser to pay the note after it is overproof of waiver, the case of Armstrong v. due, with knowledge that there has been Chadwick, 127 Mass. 156, is in point. no demand or notice, and of all the facts, There was evidence that the indorser was is a waiver of such demand. Cf. Third Na. told by the holder of the note that the tional Bank v. Ashworth, 105 Mass. 503. note was worthless, and that he should (a) And so if the property so given as hold him as indorser on the note, to which collateral security has been appropriated to the indorser assented, and said he would that purpose, and the indorser has been take the mortgaged property (given to se- authorized to use it for payment of the cure the note), sell it and take care of the note. Wright v. Andrews, 70 Me. 86. note. The indorser did so take the mort