Martin v. Ingersoll , 25 Mass. 1 ( 1829 )

Putnam J.

delivered the opinion of the Court. The general objection to the payment of this bill by the defendant to the plaintiffs is, that the holders of the bill have not given due notice of its dishonor. At the time when it was presented for acceptance, Gower, Nephews & Co. were the holders, but although the drawees refused to accept, Goldschmidt & Co. accepted supra protest for the honor of the plaintiffs’, who were indorsers next after the defendant. If Gower, Nephews & Co. were satisfied with the acceptance supra protest, the bill, so far as they were concerned, was honored. It then became the duty of Goldschmidt & Co., acceptors for the honor of the plaintiffs, to give notice to them of the dishonor. If when the plaintiffs paid the bill they were under no legal obligations to pay, in consequence of the loches of Goldschmidt & Co., it was a payment in their own wrong, so far as it respected their remedy against the defendant, unless the defendant has waived all objections to his liability on that account.

We will consider whether the defendant has made such a waiver. The bill was accepted by Goldschmidt & Co. supra protest for the honor of the plaintiffs, on the 26th of August, 1825. It appears that Goldschmidt & Co. advised the plaintiffs of that fact by letter dated the 30th of August. It was protested for non-payment at maturity, viz. October 1.2th, and Goldschmidt & Co. paid it and remitted it to the plaintiffs with their letter of advice and protest on the 13th, which were received by the plaintiffs on the 24th of December, 1825. The defendant was in London on the 25th of October, 1325, and he acknowledges that he then had had notice of the protested draft, from the agent of the plaintiffs, who was then in London. The defendant there had the means of ascertaining all the facts which materially affected his liability on the bill. He returned to Boston, and on the 13th of December, 1825, wrote to the plaintiffs that he had made arrangements with Mr. Bates of London to take up this draft; — “ Therefore you will lose nothing by my negotiations.” He desired the plaintiffs to send the bill to Charleston to be collected of Robinson & Co., who were prior indorsers, for the account of the defendant, if the plaintiffs were satisfied that he had placed funds in London to meet the plaintiffs’ demand on this bill. By the letter of December 24, 1825, he substantially repeats the same things. About two months after, viz. February 16, 1826, he acknowledges that he had received the bill and forwarded it to Liverpool ; repeating that he had placed funds in London to meet this bill ; which was after he had received information of the refusal of Robinson & Co. to pay. It further appears, that he afterwards presented the bill against the estates of Crowder, Clough & Co. the drawees, received a dividend, and now holds the bill; which was originally drawn upon Crowder, Clough & Co. for value which they had received. Now under these circumstances, the presumption of law is, that the defendant promised to pay the bill, and made his arrangements accordingly, because he was liable as a prior indorser, and the regular proceedings had been pursued to enforce his liability.

The defendant now contends that there is no evidence to show that the notice of August 30, 1825, of the dishonor of the bill, and of the acceptance supra protest by Goldschmidt & Co. for the honor of the plaintiffs, was sent by the then next packet to the West Indies from Liverpool, to be forwarded to the plaintiffs, and so the plaintiffs paid in their own wrong. We are of opinion, that under the circumstances the burden rests upon the defendant to show that fact. This is a matter which might have been rendered certain by the witnesses in the Havana ; but from examination of their depositions it does not appear certainly when that letter of the 30th of August (only four days after the acceptance of Goldschmidt and Co. supra protest) was forwarded from England or received by the plaintiffs. That was a regular banking-house, and it would have been a very extraordinary neglect if they had not sent by the then next packet the letter which certainly was written in season. It happens that the advice of the nonpayment is proved to have been seasonably given and received. The defendant was in London, and had it in his power to ascertain the fact if there had been loches on the part of Gold schmidt & Co. He was satisfied and continued to be so, long after his return to the United States, and after the knowledge of the failure of his prior indorsers. He has treated the bill as his own ; he has claimed under the English commission, in his own name ; and he cannot put the plaintiffs in statu quo. We think, under this evidence, it is for the defendant to disprove the presumption which the law raises from it, that the regular notice was forwarded by Goldschmidt & Co. The acceptor for the honor of the indorser was under no obligation to notify any other party than the one to whom he intended to resort. The conduct of the defendant amounts to an admission that he was satisfied that the proper notice had been given, and he should show clearly that he has acted upon a mistake. In the absence of any such evidence, we think the defendant would be liable according to his repeated assurances to the plaintiffs.¹

An objection was raised, that the plaintiffs did no; seasonably notify the house of Robinson & Co. at Charleston ; but we are satisfied that no loches were proved on that account. The plaintiffs proceeded according to the usages at Havana, and were not responsible for the delays arising from the Christmas holydays. In two days after they received the letters which the defendant wrote to them from Boston, they sent notice to Charleston according to his directions. It was argued that they should have sent notice to him at Boston, of the dishonor of the bill; and that the notice which their agent in London gave to him in that city was not sufficient. He had notice in fact as soon as the plaintiffs had. At any rate, after he returned to Boston and before he wrote his letters from thence to the plaintiffs engaging that they should not lose any thing by his negotiations, he had the means of knowing all the facts ; and if there had been any irregularity in regard to notice, which certainly is not to be presumed from the evidence before us, it was for the defendant to prove that he acted upon a misapprehension of the facts. As the evidence is presented to us, we are all of opinion that the plaintiffs are entitled to recover. The defendant must be defaulted.

1 See Bayley on Bills, (2d Am. ed.) 299, 300; Grosvenor v. Stone, post, 79; Konig v. Bayard, 1 Peters’s Sup. Ct. R. 262; Jones v. Savage 6 Wend. 658; Lawrence v. Ralston, 3 Bibb, 102; Offit v. Vick, Walker, 99