§ 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.1 § 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.2 But if the action is commenced on the same day on which the notice is sent (as it well may be 3), 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.5 (a) Sunday, not 1 Story on Bills, § 372; Story on Promissory Notes, § 485; Hitchcock v. Humfrey, 5 M. & G. 559; Oxford Bank v. Hayes, 8 Pick. 423; Talbot v. Gay, 18 Pick. 534; Gibbs v. Cannon, 9 S. & 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. ; Babcock 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. s. 498. 5 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 holders takes the note for collection only. Each one of the holders has a day in which to give notice to his predecessors. Myers v. Courtney, 11 Phila. 343. 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.5 (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 postoffice, 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. 1 Eagle Bank v. Chapin, 3 Pick. 180; Story on Bills, §§ 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. Whether the rule stated in the text may, perhaps, under peculiar circumstances, admit of exceptions, quære. See infra, Cabot VOL. II. 12 Bank v. Russell, 4 Gray (Mass.), 169, by Shaw, C. J. In a large commercial city, where the parties live within the limits of 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.2 § 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 receive his letters, a notice deposited in the post-office is sufficient. Walters v. Brown, 15 Md. 285. Where there is a general delivery of mail matter by messengers, and a letter is put into the post-office to be transmitted to a party resident in the same town, and not merely deposited till called for, it is probably sufficient. Shelburne, &c. v. Townsley, 102 Mass. 177. But a drop-letter, when there is no general delivery in the town where the party to whom the letter is addressed usually receives his mail matter, is not the equivalent of mailing a letter in another town to his address. Ibid. In commenting on this rule, Shaw, C. J., in Cabot Bank v. Russell, 4 Gray (Mass.), 169, says: "Even the rule that where notice is to be given to an indorser in the same town, it must be personal and ought not to be by mail, which seems to be as nearly fixed by judicial decision as such rule can be, may perhaps, under peculiar circumstances, admit of exceptions. Shall the party notifying and the party to be notified be held to live in the same place within this rule, because they live within the territorial limits of one of the large townships of New England, and all under one municipal government and known by one name as a town, but where there are several distinct villages, each with its postoffice, churches, school-houses, and other incidents of a distinct community? Such towns exist having many post-offices, to the extent of eight or more, one bearing simply the name of the town, others with the name of the town and with some local designation, as 'east,' 'north,' 'upper,' or 'lower,' and the like, and others with entirely distinct names, as post-offices." And after mentioning the decision in Chicopee Bank v. Eager, 9 Met. (Mass.) 585, sup., note 2, he says, "The court there held the notice (by mail) good, but placed the decision upon the ground of usage, which brought the case clearly within the rule as established by the adjudicated cases, and so it became unneces sary to give an opinion whether such a notice would have been good or not, without such usage. Had the fact of usage been otherwise, or the defendant not been held to have assented to it, upon the general principles previously laid down on the subject, there would have been at least plausible ground for arguing that the notice was good." Where there are two post-offices in a town, notice by letter to an indorser, addressed to him at the town generally, is sufficient, unless the party has been generally accustomed to receive his letters at one of the offices in particular. The plaintiff makes out a prima facie case by proving notice by letter addressed to the defendant at the town generally. The defendant may rebut this by showing that he usually receives his letters at one office only, and that this might have been known by reasonable inquiry at the place where the letter was mailed. Morton v. Westcott, 8 Cush. (Mass.) 427. See also Manchester Bank v. White, 30 N. H. 456; Manchester Bank v. Fellows, 28 Id. 302; Windham Bank v. Norton, 22 Conn. 213. A notice addressed to "Mrs. Susan Collins, Boston," is prima facie sufficient to charge her as an indorser, if she lived in Boston. True v. Collins, 3 Allen (Mass.), 438. 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.1 Thus, where the written notice, given 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. 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.3 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. (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. (b) 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. 3 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, 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 v. Seixas, 2 Johns. Cas. 337. 6 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, 5 Cush. (Mass.) 546; Crocker v. Getchell, 10 Shep. (Me.) 392; Wheaton v. Wilmarth, 13 Met. (Mass.) 422; Clark v. Eldridge, Id. 96; Cayuga Co. Bank v. Warden, 1 Comst. (N. Y.) 413; Dennistoun v. Stewart, 17 How. (U. S.) 606; Youngs v. Lee, 18 Barb. (N. Y.) 187; Shelton v. Braithwaite, 7 M. & W. 436; Stockman v. Parr, 11 Id. 809. (b) Bundy v. Buzzell, 51 Vt. 128. In Maine, by Stat. 1868, c. 152, R. S. c. 32, § 10, no waiver of demand and notice 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;2(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, 3 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. 1 Ibid. 2 Bond v. Farnham, Greenl. 207. Mass. 70; Andrews v. Boyd, 3 Met. 434; Mead v. Small, 3 3 Tower v. Durell, 9 Mass. 332. 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 the note, but often told plaintiff he would take care of the note. There was no evidence that a demand was made and notice of non-payment given to the indorser, but the holder contended that there was evidence which would justify the jury in finding that the indorser had waived demand and notice. The court rejected the evidence, but on appeal its decision was reversed, and the court above affirmed the doctrine of the text, that the oral promise of an indorser to pay the note after it is overdue, with knowledge that there has been no demand or notice, and of all the facts, is a waiver of such demand. Cf. Third National Bank v. Ashworth, 105 Mass. 503. (a) And so if the property so given as collateral security has been appropriated to that purpose, and the indorser has been authorized to use it for payment of the note. Wright v. Andrews, 70 Me. 86. |