Wachusett National Bank v. Fairbrother , 148 Mass. 181 ( 1889 )

C. Allen, J.

Prior to the St. of 1871, c. 239, now embodied in the Pub. Sts. c. 77, § 16, the holder of a note could not give notice of its dishonor through the mail to an indorser who lived in the same city or town, but must give the notice to him personally, or at his place of business or residence. The chief object of the statute was to extend the privilege of giving notice by mail to cases where the parties live in the same place. But in ascertaining the residence of' a person to be notified, the same rules are applicable under the statute as would have been applicable prior to the statute in case the holder of the notes had lived in Worcester and the indorser in Fitchburg. The statute did not undertake to give a new definition of “ residence,” nor to change the rules of law already established as to what should be sufficient to constitute a residence for the purpose of giving or receiving notice in such cases.

Residence is not a word of uniform significance, but is used in different senses. Residence for the purpose of taxation implies more permanency of abode than residence for the purpose of notice of the dishonor of a note. See Lee v. Boston, 2 Gray, 484, 490; Borland v. Boston, 132 Mass. 89, 93, 95. We have only to consider what constitutes a residence for the latter purpose.

It is well settled that there may be a residence sufficient for this purpose, although the person has his home elsewhere. Chouteau v. Webster, 6 Met. 1. Young v. Durgin, 15 Gray, 264. There may indeed be a sufficient residence without actually living in- the place at all, as where one' is accustomed to receive his letters at a post-office in another town from that in which he lives. Notice sent to him at his usual post-office address is considered to be a notice to him at his residence. Chouteau v. Webster, 6 Met. 1, 6, 7. Bliss v. Nichols, 12 Allen, 443, 445. Shelburne Falls National Bank v. Townsley, 102 Mass. 177. Bank of Columbia v. Lawrence, 1 Pet. 578. And if one is accustomed to resort to several different post-offices, neither of which is in the town where he lives, it has been considered that a notice addressed to him at either one will be good. Bank of United States v. Carneal, 2 Pet. 543. Cabot Bank v. Russell, 4 Gray, 167. Story on Notes, § 343.

So also one may have two residences at the same time, notice to him at either of which will be good; as if one is living alternately at two places during the year, going frequently from one to the other. Story on Notes, § 343. And it has often been held that an abandoned residence may be considered as still subsisting, if no new residence has been established, and if the holderof the note does not know of the change. Bliss v. Nichols, 12 Allen, 443. Importers & Traders’ National Bank v. Shaw, 144 Mass. 421. Bank of Utica v. Phillips, 3 Wend. 408. Saco National Bank v. Sanborn, 63 Maine, 340. And if it is known that an indorser has abandoned his residence, and if, upon reasonable inquiry, the place of present residence cannot be ascertained, no notice at all need be given. Blakely v. Grant, 6 Mass. 386. Story on Notes, § 316.

From these and other authorities which might be cited, it abundantly appears that the word “residence,” in the law of negotiable instruments, is not used in a strict sense as necessarily implying a permanent, exclusive, or actual abode in the place, but it may be satisfied by a temporary, partial, or even constructive residence. The law does not require of the holder of a note the highest and strictest degree of diligence in giving notice, but only such a degree of reasonable diligence as will ordinarily bring home notice to the party. Bank of United States v. Hatch, 6 Pet. 250, 257. Less diligence is required in ascertaining the residence for the purpose of giving notice than for the purpose of making a demand of payment. Young v. Durgin, 15 Gray, 264.

Applying these general views to the case at bar, we" are satisfled, in the first place, that the defendant had a sufficient residence to entitle the holder of the notes to give notice of their dishonor to her through the mail. It may be conceived that, in a given case, a person might remain so transiently in different places that no one of them could be called his residence, and that no notice except a personal one could be given to him; but such is not this case.

We are, then, to consider where the defendant’s residence was on the day of her child’s burial, and on the succeeding day. The defendant has stated the facts in the bill of exceptions as she contended that the facts were. Some of them were controverted by the plaintiff, but in this inquiry she is entitled to the benefit of having it assumed that they actually were as she contended that they might be found to be by a jury. And looking at them even in this manner, we are unable to see that the notice of dishonor could as properly have been sent to her at any other place as where it was sent. She certainly had gained no residence in England. Her brief and casual visit to Mr. Kimball’s gave her no residence in his house; her counsel so concedes and contends. She probably had a sufficient residence in Martha’s Vineyard while she was actually there; but she gained no domicil, and had no intention of making a permanent residence there. She went there for a temporary purpose, having no intention of returning to Fitchburg, because she intended to go to England; but this plan was broken up for the time by the sickness and death of her child. There was nothing to show that Martha’s Vineyard was to be deemed her residence except while she was personally there. When she returned to Fitchburg, it was not as to a new or strange place, but it was the place of her early and her recent home. Unless she had gained a new residence elsewhere, that would be a good residence for the purpose of notifying her of the dishonor of a note. It appears also to have been her principal and customary address for letters by mail. For the purpose of receiving notice, Fitchburg must be considered as the best residence she then had. If her residence was not there, she had no residence, and in that case notice, if sent at all, might properly be sent to her in Fitchburg, and her proper address in Fitchburg was at 82 Blossom Street, where the notice was sent. Exceptions overruled.