Tyson v. Oliver , 43 Ala. 455 ( 1869 )

B. F. SAFFOLD, J.

The appellant was the holder of a bill of exchange, drawn and endorsed by the appellees, payable at the Bank of Mobile on the 1st of December, 1861. The bill was protested for non-payment on the 4th of December, 1861. Notices separately to the appellees, directed to Portland, Dallas county, Alabama, and a notice to one of them, Starke H. Oliver, directed to Mobile, Alabama, were placed in the post-office at Mobile, Ala.

The bill of exceptions presents the single inquiry, whether the notice given was sufficient. At the time of signing this bill, Samuel W. Oliver resided in Dallas county, and Portland was his post-office ; and the residence and post-office of Starke H. Oliver were in the city of Mobile. Notice of the non-payment of a bill of exchange, directed to the place where the person sought to be charged resided at the time of drawing, making or endorsing such bill, note, or negotiable instrument, or to the post-office nearest his residence at that time, is sufficient, unless, at the time of affixing his signature, he specifies the post-office to which he requires notice to be sent. — Eevised Code, § 1850. At the time of sending the notices to Portland, the post-office there had been discontinued for several months. On the 30th of June, 1861, the postal service of the United States was suspended, under circumstances which should justly charge every citizen of the State with knowledge of the fact.

The section of the Code referred to materially modifies the general mercantile law respecting notice, but in relieving the holder of commercial paper from the necessity of ascertaining the latest residence or post-office of a party he seeks to charge, it certainly can not mean to dispense with all inquiry, and in some instances, as in this, with all notice. As a simple inquiry at the post-office where the notice is deposited, is sufficient to give information of the existence or non-existence of one at the place to which it is directed, and of a mail service to that place; in the case of inland bills at least, it is incumbent on a party to inform himself of these facts, and to send his notices under circumstances reasonably calculated to reach the party to be charged.

It appears, however, that there was a post-office nearer to the residence of Samuel W. Oliver than Portland — that at Richmond. The provision of the Code was not complied with in this respect. The fact that the bill was dated at Portland, was not sufficient evidence of the drawer’s residence or post-office, to relieve the holder from the necessity of making diligent inquiry about the matter.—Foard v. Johnson, 2 Ala. 565; Br. Bank at Decatur v. Pierce, 3 Ala. 321. The absence of Samuel W. Oliver from his home was temporary, and the circumstances attending it, as shown by the evidence, were not such as to deprive him of the right to notice. The notice intended for him was not sent to the post-office nearest to his residence, either at the time of issuing the notice, or at the time of his signing the bill, but was directed to a place where there was no post-office, and to which there was no mail service. It was, therefore, insufficient.

The solution of the case respecting Starke H. Oliver depends on the residence of the appellant at the time of giving the notice. The evidence is silent on this subject, except a single statement by one of the appellees, that he found him living in Lowndes county five years after the protest of the bill. The presumption, that he was living there at the time of the protest, is too remote. If he lived out of Mobile, the notice to Starke H. Oliver was sufficient, that being the place of his residence at the time of hia signing the bill, and also the place where the bill was payable, and was dishonored and protested.—Revised Code, 1850; Greene v. Farley, 20 Ala. 322; Gindrat et al. v. Mechanics’ Bank of Augusta, 7 Ala. 324. If he lived in Mobile, personal notice was necessary.—Rives v. Parmley, 17 Ala. 256; Foster v. McDonald, 3 Ala. 34; Bowling v. Harrison, 6 Peters, 248. As the burden of proof was on the appellant, and the fact to be proven was so peculiarly within his own knowledge, we must presume that he lived ih Mobile. The notice to Starke H. Oliver was, therefore, insufficient.

The judgment of the circuit court, being in accordance with the opinion herein expressed, is affirmed.