President of the Wamesit Bank v. Buttrick , 77 Mass. 387 ( 1858 )

By the Court.

When parties severally liable upon a promissory note are joined ir. the same action, as allowed by St. 1852, c. 312, § 3, the court is required by the terms of the statute to “ enter several judgments according to the several contracts of the defendants, and issue one or more executions thereon, as the case may require.” The object of the statute Was simply to avoid multiplicity of suits against defendants severally liable on one contract, but not in any way to affect the judgment to be rendered for or against either. By the verdict and judgment in favor of Buttrick, the case was finally disposed of as to him, and he would not be affected by further proceedings against the other defendants. See Hawkes v. Phillips, 7 Gray, 284. Exceptions to the rulings in his favor at the trial were therefore properly entered at the next term of this court.

Richardson 8p A. R. Brown, for the plaintiffs. Butler, for the defendant.

The notice put into the New York post-office, directed to the cashier of the Bank of Commerce, to be by him directed and mailed again to the defendant, was not notice to the latter. The defendant may be presumed to have received his own letters, but not the letters of the cashier of the Bank of Commerce. The conversation between the plaintiffs’ cashier and the defendant was not notice to the latter, because the plaintiffs themselves had no notice and could not therefore give it, and because it gave no notice to the defendant that the plaintiff looked to him for indemnity. Bachellor v. Priest, 12 Pick. 399. Gilbert v. Dermis, 3 Met. 495.

Case to stand for argument.

Bigelow, J.

The facts show that due diligence was used in giving notice of the dishonor of the note to the defendant. Notices in due form, directed to all the indorsers, of the nonpayment of the note were seasonably put into the post-office in New York under cover to the last indorser. This was according to the usage and practice of merchants and bankers, and shows a sufficient compliance with the rule of law requiring notice to indorsers of the dishonor of a note or bill of exchange. It is immaterial that the holder or last indorser held the note for collection only, and was not an indorser for a valuable consideration. Eagle Bank v Hathaway, 5 Met. 215. The notices having been seasonably and properly put into the post-office, it is immaterial that they were never received and forwarded, by reason of being lost in the mail. Munn v. Baldwin, 6 Mass. 316. Due diligence did not require anything further to be done in order to hold the indorsers. Story on Bills, § 382. Bayley on Bills, (2d Amer. ed.) 275. Exceptions sustained.