« PreviousContinue »
the usage of that bank, as to the mode and time of demand and notice, will bind the parties, whether they had knowledge of it or not; and if the note is discounted at a bank, its usages, known to the parties, are equally binding.
$ 190 a. Same subject. Proof of notice will also be dispensed with, where it was morally or physically impossible to give it; as, by the absconding of the party, or where the holder was justifiably ignorant of the place of his abode; or, by the general prevalence of a malignant disease; or, the sudden illness or death of the holder; or any other inevitable casualty or obstruction. The omission of notice is also excused, where the holder of the bill stands in the relation of an accommodation holder or indorser to the drawer or other indorser, the latter being the real debtors. So, if the drawer of a bill had no right to draw, and no reasonable ground to expect that the bill would be honored by the drawee; as, if he had drawn it without funds in the hands of the drawee, or any expectation of funds in his hands to meet it, or any arrangement or agreement on his part to accept it; for in these cases he would have no remedy against any one in consequence of the dishonor of the bill. But if he were a mere accommodation drawer, or would be entitled to some remedy over against some other party, or would otherwise be exposed to loss and damage, he is entitled to notice. So, if having funds in the hands of the drawee, or on the way to him, the drawer has withdrawn, or stopped them, no proof of notice is requisite. Nor is it required in an action against the indorser of a bill or note, where he is the real debtor, for whose accommodation the instrument was created, and no funds have been provided in the hands of other parties for its payment. Nor, where, being an accommodation indorser, he has received funds sufficient for the payment of the bill or note in full, and to secure him an ample indemnity. Nor where, by arrangement between any of the parties, the necessity of notice has been expressly or impliedly dispensed with.?
§ 191. Proof of contents of written notice. If the notice has
1 Lincoln & Kennebec Bank v. Page, 9 Mass. 155 ; Blanchard v. Hilliard, 11 Mass. 85 ; Smith v. Whiting, 12 Mass. 6 ; City Bank v. Cutter, 3 Pick. 414.
Story on Bills, $$ 308-317 ; Story on Promissory Notes, &$ 355–357. Knowledge in fact of the dishonor of a bill, where the drawer is himself the person to pay it, as executor of the acceptor, amounts to notice. Caunt v. Thompson, 7 M. G. & S. 400 ; 6 D. & L. 621. But knowledge of the probability, however strong, that the bill will be dishonored, is not sufficient to dispense with notice. Ibid. ; Fuller v. Hooper, 3 Gray, 334.
been given by letter or other writing, it is now held, that secondary evidence of the contents of the letter or writing is admissible, without any previous notice to the defendant to produce the original; for the rule, which requires proof of notice to produce a paper, in order to let in secondary evidence of its contents, is not capable of application to that, which is itself a notice, without opening an interminable inquiry. But where the secondary evidence is uncertain or doubtful, or without sufficient precision as to dates or the like, it is always expedient to give due notice to the defendant to produce the paper. And whenever notice to produce a paper is given, it should particularly specify the writing called for.2
$ 192. Same subject. Notice to produce. But the rule of not requiring notice to produce a written notice of the dishonor of a bill or note, is restricted to the bill or note, on which the action is brought ; for if the question is upon notice of the dishonor of other bills or notes, notice to produce the letters giving such notice must be given and proved, as in ordinary cases. And if notice to produce has been given, the attorney of the adverse party may be called to testify whether he has in his possession the paper sought for; in order to let in secondary evidence of its contents. 4
$ 193. Same subject. When notice of the dishonor of a bill or note has been given by letter, it will in general suffice to show that a letter, containing information of the fact, and properly directed, was in due time put into the proper post-office, (a) or
1 See ante, vol. i. § 561 ; Chitty & Hulme on Bills, pp. 656, 657 (9th ed.) ; Ackland v. Pierce, 2 Campb. 601 ; Roberts v. Bradshaw, i Stark. 28 ; Eagle Bank v. Chapin, 3 Pick. 180 ; Lindenberger v. Beall, 6 Wheat. 104.
* France v. Lucy, Ry. & M. 341 ; Jones v. Edwards, 1 MCI. & Y. 139 ; Morris v. Hauser, 2 M. & Rob. 392 ; ante, vol. i. &S 560-563 ; Chitty & Hulme on Bills, pp. 657, 658.
3 Lanauze v. Palmer, 1 M. & Malk. 31 ; Aflalo v. Fourdrinier, Id. 335, n. • Bevan v. Waters, 1 M. & Malk. 235; Chitty & Hulme on Bills, p. 658 (9th ed.).
6 Lawson v. Farmers' Bank of Salem (Supreme Court of Ohio, 1853), 1 Am. Law Reg. p. 617.
(a) “A difficulty arises where the dom- another town. The nearest approximation icile or place of business of the indorser is to a general rule to be deduced from the doubtful or uncertain; where there are cases seems to be this, – that whenever several post-offices in the same town ; circumstances of the foregoing nature exwhere the indorser is nearer the post- ist, to take the case out of the ordinary one office of a town other than the one in of a fixed and known residence of the inwhich he resides; where he is accustomed dorser and a regular mail to the established to receive his letters at one post office or post-office of such place, it is the duty of the at several different ones, in the same or holder or of the notary, or other officer or
left at the defendant's house. It is ordinarily sufficient, that it be directed to the town in which the party resides, though there may be several post-offices in it; unless it is known to the holder that he usually receives his letters at a particular office; in which case it should be directed to that office; the rule being, that the notice should be sent to the place where it will be most likely promptly to reach the party for whom it is intended. (a) In civil cases, but not in criminal,4 the postmark on the letter will be sufficient prima facie evidence of the time and place of putting it into the post-office. And if there is any doubt of the genuineness of the postmark, it may be established by the evidence of any person in the habit of receiving letters with that mark, as well as by a clerk in the post-office. The fact of sending the letter to the post-office, after evidence has been given that it was written, may be shown by proof of the general and invariable course of the plaintiff's business or office, in regard to the transmission of his letters to the post-office, with the testimony of all
1 Chitty & Hulme on Bills, p. 658 (9th ed.) ; Story on Bills, ss 297, 298,300 ; Shed r. Brett, i Pick. 401 ; Hartford Bank v. Hart, 3 Day, 491. Delivery to the bell-man is sufficient. Pack v. Alexander, 3 M. & Scott, 789. And any delay in the post-office will not prejudice the holder who has sent the notice. Dobree v. Eastwood, 3 C. & P. 250 ; Woodcock v. Houldsworth, 15 M. & W. 124. It is not necessary that the notice should reach the party before the action is brought : it is sufficient that it is seasonably sent. New England Bank v. Lewis, 2 Pick. 128.
? See 1 Hare & Wallace's Leading Cases, pp. 256, 257, and the authorities there cited (ante, $ 188).
8 Arcangelo v. Thompson, 2 Campb. 623 ; New Haven County Bank v. Mitchell, 15 Conn. 206.
4 Rex v. Watson, 1 Campb. 215.
agent employed by him, to make reason. ascertain the residence of the defendant, ahle inquiries at the proper sources, to as- that if the only information they had was certain the residence or place of business that her post-office address was Rutland, of the indorser; at what post-office, one or and had no information that there were more in the same or another town, he is two post-offices in Rutland, and the noaccustomed to receive his letters; and in tice was sent to Rutland in due season, it the absence of such information, to find would be sufficient to charge the defendant out the post-office nearest, or in some as indorser, unless the defendant satisfied other respect most convenient to, his resi- the jury that she was accustomed to redence; and then address and forward the ceive her letters only from the West Rutnotice by such mail and to such post-office land post-office; and further satisfied them as that it would be most likely to reach that this fact could upon reasonable inquiry him certainly and promptly." By Shaw, have been ascertained at Worcester, where C. J., in Cabot Bank v. Russell, 4 Gray, the notice was mailed.” Cf. to same effect, (Mass.) 169, 170.
Morton v. Westcott, 8 Cush. (Mass.) 427; (a) In Burlingame v. Foster, 128 Mass. Cabot Bank v. Russell
, 4 Gray (Mass.), 125, the rule as laid down was slightly 169; Manchester Bank v. White, 30 N.H. more favorable to the indorser, and was as 456; Manchester Bank v. Fellows, 28 id. follows: “It was the duty of the plaintiff 302; Windham Bank v. Norton, 22 Conn. and notary to make reasonable inquiries to 213.
the persons, if living, whose duty it was to hand over the letters, or to carry them thither, that they invariably handed over or carried all that were delivered to them, or were left in a certain place for that purpose; and if books and entries were kept of such letters sent, they should be produced, with proof of the handwriting of deceased clerks, who may have made the entries. The mere proof of the course of the office or business, without calling the persons actually employed, if living, will not ordinarily suffice.1
§ 194. Where notice to be given. As to the place to which notice may be sent, this may be either at the party's counting-room, or other place of business, or at his dwelling-house; or at any other place agreed on by the parties. And if a verbal notice is sent to the place of business during the usual business-hours, and no person is there to receive it, nothing more is required of the holder.? (a)
§ 195. Excuse for failure to give notice, &c. If no notice of dishonor has been given, or no presentment of protest has been made, the plaintiff may excuse his neglect by proof of facts, showing that presentment or notice was not requisite. Thus, where the defendant was drawer of the bill, the want of presentment is excused by proving that he had no effects in the hands of the drawee, and no reasonable grounds to expect that the bill would be honored, from the time it was drawn until it became due.
i Sturge v. Buchanan, 2 M. & Rob. 90 ; s. c. 10 Ad. & El. 598 ; s. C. 2 Per. & Dav. 573; Hetherington v. Kemp, 4 Campb. 193 ; Toosey v. Williams, 1 M. & Malk. 129; Chitty & Hulme on Bills, p. 659 (9th ed.) ; Hawkes v. Salter, 4 Bing. 715; 1 M. & P. 750.
2 Chitty & Hulme on Bills, p. 454 (9th ed.); Crosse v. Smith, 1 M. & S. 545 ; Whitwell v. Johnson, 17 Mass. 449 ; State Bank v. Hurd, 12 Mass. 172 ; Allen v. Edmonson, 2 C. & K. 547; ante, $$ 178–180.
3 Where a note is payable at a certain place and on demand after a certain time, no averment or proof of a demand is necessary to the maintenance of the action. Gammon v. Everett, 12 Shepl. 66.
• Chitty & Hulme on Bills, pp. 436, 437 (9th ed.); Story on Bills, $$ 308-317, 329, 367-369 ; Rucker v. Hiller, 16 East, 43 ; Legge v. Thorpe, 12 East, 171 ; Bickerdike v. Bollman, 1 T. R. 405 ; Hammond v. Dufrene, 3 Campb. 145. So as to the indorser of a note. Corney v. Da Costa, 1 Esp. 302. See also Campbell v. Pettengill, 7 Greenl. 126 ; French v. Bank of Columbia, 4 Cranch, 141; Austin v. Rodman, i Hawks, 194; Robinson v. Ames, 20 Johns. 146. And see Dollfus v. Frosch, 1 Denio, 367 ; Fuller v. Hooper, 3 Gray, 334.
(a) When an indorser has a residence there, stopping there from time to time in one town previous to making the note, whenever he comes into that town, a noand then moves to another, but leaves a tice sent to that house is sufficient. Mur. member of his family in possession of his ray v. Ormes, 3 MacArthur (Dist. of Coformer residence, together with his ser- lumbia), 60. vants, and keeps up his establishment
So if, having funds in the hands of the drawee, or on the way to him, the drawer has withdrawn or stopped them. So, the want of notice of dishonor is excused, in an action against the drawer, by proof that the bill was accepted, merely for the accommodation of the drawer, who was therefore bound at all events to pay it ; and this fact may well be inferred by the jury, if the bill is made payable at the drawer's own house. And the want of effects in the drawee's hands, he being the drawer's banker, may be shown by the banker's books; the production and verification of which by one of his clerks is sufficient, though the entries are in the handwriting of several. Nor is proof of notice requisite in an action against the indorser of a bill or note, where he is the real debtor, for whose accommodation the instrument was created, and no funds have been provided in the hands of other parties for its payment. So, if the holder was ignorant of the drawer's residence, this excuses the want of notice to him, if he has made diligent inquiry for the place of his residence; of which fact the jury will judge. So, if the notice was sent to the wrong person, the mistake having arisen from indistinctness in the drawer's writing on the bill; 6 (a) or if the drawer verbally waives the notice, by promising to pay the bill, or to call and see if the bill is paid ;or if the indorser himself informs the holder that the maker has absconded, and negotiates for further time of payment, — the want of notice is excused. If the agent of a corporation draws a bill in its name
1 Bayley on Bills, 296 ; Story on Bills, & 313 ; Fuller v. Hooper, 3 Gray, 334.
2 Sharp v. Bailey, 9 B. & C. 44 ; 4 M. & Ry. 4 ; Callott v. Haigh, 3 Campb. 281. If the transaction between the drawer and drawee is illegal, the payee, being the indorser, and conusant of the illegality, is liable without notice. Copp v. McDougall, 9 Mass. 1.
8 Furness v. Cope, 5 Bing. 114. 4 Story on Bills, SS 314-316.
5 Browning v. Kinnear, Gow, 81; Bateman v. Joseph, 12 East, 433; Harrison v. Fitzhenry, 3 Esp. 240 ; Siggers v. Brown, 1 M. & Rob. 520 ; Hopley v. Dufresne, 15 East, 275 ; Holford v. Wilson, 1 Taunt. 15; Whittier v. Graffham, 3 Greenl. 82.
6 Hewitt v. Thomson, 1 M. & Rob. 641.
· Phipson v. Kneller, 4 Campb. 285 ; 1 Stark. 116; Chapman v. Annett, 1 C. & K. 552. Or if, before maturity of the note or bill, the indorser promises to pay, upon the agreement of the holder to enlarge the time. Norton v. Lewis, 2 Conn. 478.
6 Leffingwell v. White, 1 Johns. Cas. 99. See also ante, $ 184.
(a) But in Davey v. Jones, 42 N. J. L. held in suit by B against A that as the de28 when A indorsed a note to B, and B fault arose either from the negligence of indorsed it and sent it to a bank for col- the plaintiff, in writing his name ambigu. lection, and the notary employed by the ously on the note, or from the carelessness bank mistook B's name and sent the notices of the bank, his collecting agent, in not of B and A, in one envelope wrongly telling the notary the true name of the directed to B, in consequence of which plaintiff, the lack of notice was not exthe notices never reached A or B, it was cused.