President of Cabot Bank v. Russell , 70 Mass. 167 ( 1855 )

Shaw, C. J.

The first exception is, that the court ruled that the signature of the guaranty was competent evidence from which the jury might draw such inferences, on the point of the genuineness and acknowledgment of the signature, as they might think reasonable. As the admitted act and signature of the defendant, we think it was competent evidence against the defendant; if any instruction was desired, as to its legal effect, it should have been asked for.

The other point is one of great practical importance. It is well settled that, when the indorser lives in a different place from the holder, notice by mail is sufficient; and that such notice, rightly directed and addressed to the indorser, is sufficient evidence of notice, without proof that it reached the indorser. Munn v. Baldwin, 6 Mass. 316. Shed v. Brett, 1 Pick. 401. This is a rule of too much importance to be doubted or drawn in question. The difficulty arises where the domicil or place of business of the indorser is doubtful or uncertain ; where there are several post offices in the same town; where the indorser is nearer the post office of a town other than the one in which he resides; where he is accustomed to receive his letters at one or several different post offices, in the same or another town. See Bank of Columbia v. Lawrence, 1 Pet. 578 ; Bank of the United States v. Carneal, 2 Pet. 543; Story on Notes, §§ 322 & seq.

The nearest approximation to a general rule, to be deduced from the cases, seems to be this; that whenever circumstances of the foregoing nature exist, to take the case out of the ordinary one of a fixed and known residence of the indorser and a regular mail to the established post office of such place, it is the duty of the holder, or of the notary or other officer or agent employed by him, to make reasonable inquiries at the proper sources, to ascertain the residence or place of business of the indorser; at what post office, one or more, in the same or another town, he is accustomed to receive his letters; and, in the absence of such information, to find out the post office nearest, or in some other respect most convenient to his residence; and then address and forward the notice by such mail, and to such post office, as that it would be most likely to reach him certainly and promptly. -

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, (Eagle Bank v. Hathaway, 5 Met. 215 ; Phipps v. Chase, 6 Met. 492; Phipps v. Milbury Bank, 8 Met. 79,) 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 post office, churches, schoolhouses, 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 ” or “ north,” “ upper ” or “ lower,” and the like, and others with entirely distinct names, as post offices.

In the case of Chicopee Bank v. Eager, 9 Met. 585, it appeared that there were then at least three large trading and manufacturing villages within the territorial limits of Springfield, each having a post office, with the usual incidents of a distinct settlement. A note was payable at the Chicopee Bank, and the indorser lived in Cabotville; and notice was sent by mail to him at Cabotville. It was in evidence that such was the usage of Springfield; and as the note was payable at the Chicopee Bank in Springfield, it was considered that he was bound by the usage. The court there held the notice good, but placed the decision upon the ground of usage, which brought the case clearly within the rule as established by adjudicated cases ; and so it became unnecessary 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.

In the present case, the note was payable at the Holyoke Bank, which is in Northampton. The note, belonging to the plaintiffs in another town, was presented at the Holyoke Bank at maturity, by a notary employed by them, and was dishonored. He inquired of the cashier where the indorser lived, and was told “-at Hadley.” This was the truth, and was an answer not calculated to put him on further inquiry, if he did not know in what part of Hadley the defendant lived, or that there was more than one post office in that town; and he testifies that he did not. As many, perhaps most, interior agricultural towns in Massachusetts have but one post office, we cannot consider it as of itself proof of negligence, that a notary public in another town did not know that there were more in Hadley. If there had been but one, the notice directed to the defendant generally at Hadley, he not being in the habit of receiving his letters at any post office in another town, would have been good, in whatever part of that town he had his residence. See Morton v. Westcott, 8 Cush 425 ; Downer v. Remer, 21 Wend. 10, and 23 Wend. 620

Exceptions overruled.