Foreman v. Wikoff , 16 La. 20 ( 1840 )

Simon, J.,

delivered the opinion of the court.

Defendant, Wikoff, is sued as endorser of a promissory note ; he acknowledges his signature, but denies ever having received any legal notice of protest. Judgment was rendered against him, and he appealed.

The notary in his certificate states, that the endorsers (by names) have been notified of the protest by two notices, printed and written, signed by him, sealed and folded in the form of letters, dated on day of protest, and addressed to them respectively, parish of St. Landry, which he deposited in the letter-box of the post-office, in the town of Opelousas ; and, moreover, that he sent the other notices to the usual residence of the endorsers, &c.; all this was done on the day of the protest.

It is in evidence that defendant lives twenty miles distant from Opelousas ; that there is a post-office about five miles from his house; that he has been in the habit for many years of receiving his letters from the post-office at Opelousas, and that they are not forwarded nearer his residence. It is also shown by a witness, that the notary gave him a letter for defendant, which witness gave to Dr. Cook next day, to be delivered to said defendant, and that he saw Dr. Cook go up to the carriage-to give it to Mrs. Wikoff, who was in said carriage. Dr. Cook says he handed it to defendant’s wife, but does not remember if it was on the same day. Defendant acknowledged under oath that he had received the notice by the hands of his wife, the day after she received it.

611^ ”r°g®e J¡° j^e sited in the prinoftheparisVnit cil or usual place of residence, five miles from which there is another post office, although in the same parish, is insufficient. But, where it is shown that notice reached the endorser the second day after protest, who lived twenty miles from the place, by private conveyance of the notary, it is sufficient proof of diligence and notice to bind the endorser.

Had the notary limited the exercise of his duty to the notice which he deposited in the post-office at Opelousas, it is clear it would have been insufficient, as it was not addressed to the defendant at his domicil or usual place of residence, five miles from which there is another post-office. 1 Louisiana Reports, 332 ; 1 Moreau’s Digest, 96. Although it is in evidence that he has been for many years in the habit of receiving his letters at Opelousas, and that they are not forwarded nearer his residence, it is not shown that he ever gave the postmaster any instructions to that effect.

But, on the other hand, we think there is proof of sufficient diligence, from the fact that the other notice reached defendant the second day after that of the protest. The notary gave it to the witness on the same day he made the protest; witness handed it the next day, through Dr. Cook, to Mrs. Wikoffj who delivered it to her husband the day after. At a distance of twenty miles, it can hardly be expected that the notice could have reached the defendant sooner, even by mail. We think, therefore, that the district judge did not err in rendering judgment against him.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.