President of the Farmers Bank v. Duvall , 7 G. & J. 78 ( 1835 )

Archer, Judge

delivered the opinion of the court.

We shall examine the following questions which arise on the bill of exceptions taken by the plaintiff.

1. Is there evidence of a demand on the maker of the note ?

2. Was notice of dishonor of the note duly given to the defendant ?

The liability of Richard Duvall the endorser of the note, was a contingent liability dependent upon a demand of payment being made on the drawer, and upon a due notification to the endorser of the dishonor of the note. On the failure of either, no recovery can be had against the endorser.

The authorities, independent of the existence of any particular usage, where the notes are payable so many days after date, have definitely fixed the time and mode of demand, or presentment.

It appears at one time to have been questioned, as the drawer had the whole of the last day of grace to pay the money due, whether the holder could notify the endorser of the presentment, and dishonor on the last day of grace; but whatever douhts may at any time have existed upon this subject, it is now abundantly settled, that such a note maybe demanded on the last day of grace, and that notice of the dishonor may be immediately given, or in other words, if payment on the last day of grace be not made, or be refused upon demand, the holder may at once treat the note as dishonored, and give notice accordingly. But no demand of payment at any anterior day will, by the general principles of law, justify the holder to treat the note as dishonored.

The mode of demand appears to be equally well settled.

A demand without the presentation of the note, would in general be equivalent to no demand, and when it is made, the holder should be prepared and ready to produce it.

Testing the evidence relied upon here to shew a demand, by the above principles, independent of any question of usage, and it is quite apparent that no demand in contemplation of law has been made, because the notice relied upon as a demand, was made on the sixtieth day, when the note had three days according to commercial usage to run, and when by a neglect, or refusal to pay, it could not he dishonored. If such a notice could be treated as a demand, it would be difficult to say, that although the note had sixty days to run, a notice the next hour after the birth of the note, when it was due, and when it must be paid, would not also be equally a legal demand.

But the witness states, that he was the servant of the bank, and that he served on the drawer a written notice in the usual form, stating when the note was due, and must be paid, and that he left the said notice with the drawer, as is the rule in all such cases. It is supposed that this language of the witness, constitutes evidence of a usage on the part of the bank to make demand of payment, at a time, and under circumstances different from the general rules of law, and that efficacy should be given to such usage, if found by the jury, so as to validate as a demand, that which without such usage, would be a nullity. In the view which we take of the evidence, it is immaterial to examine the question, as to the legal effect of such usage if established, because we consider that the witness proves no usage bearing on the question of a demand. The only conclusion which can be drawn from the evidence, is, that it is the practice of this bank, as it is of all banks to give notice of the falling due of notes; that the parties may be apprised, not only of the holders of the notes, but reminded, and admonished of the near approach of the time for the payment of their liabilities. The witness does not state the existence of any usage, to treat this common notification, as a substitute for the legal demand on the holder. The rule established is, on the contrary, perfectly consistent with the necessity of presentment for payment when due, and in the accustomed legal mode'. The defect in the evidence to sustain the proposition, can in no manner be aided by the averment, of the purpose for which it was offered, for that is, the mere statement of the plaintiff, and can prove nothing. Had reliance been intended to have been placed, on such an alleged usage, the plaintiff should have gone further and proved, that by the usage of the bank, demands against the drawers of notes, in order to charge the endorsers, were always made by the alleged notification on the day notes first fell due, instead of being made according to the rules of law, and that such notice was by usage, a substitute for the lawful demand. In such a state of facts, the question would have been brought before the court, how far in point of law such a notice could operate as a demand.

The determination of this question would render it unnecessary to express any opinion on the second question, but as it is one of importance to the commercial community, and ought not to remain in doubt, and as the counsel have expressed*a desire, that be our opinion what it might upon the question of demand, the court would give their views of the second question; we shall accordingly proceed to express our views upon that branch of the subject, and in doing so, shall not examine the question, whether the jury were in point of law authorized to draw any deductions from the evidence of Cleary, in relation to the contents of the alleged letter of notification, or his putting in the post office on the day designated in the margin of the letter book, but shall for this question take it as conceded, that the copy of the letter in the record was sent to the post office on the 23d day of August.

The examination of the due notification of the dishonor of the note concedes the demand on the maker, and that notice of the demand and nonpayment were placed in the post office ■on the 23d of August, the day of the dishonor.

The mail from Annapolis to the place of the defendant’s residence, closed at 9 o’clock on the last day of grace, (22d. August) but did not leave Annapolis until sunrise on the 23d. It also appears that the next mail closed at 9 o’clock, on the 24th of August, and did not leave until sunrise on the 25th.

Mr. Justice Bailey in his treatise on Bills, states the rule to be, that notice may he given on the day of the dishonor, and that it must be given at farthest, by the expiration of the day following the failure, where the parties reside in the place where the presentment was made, and by the post of that, or the next post day, to those who reside elsewhere, and the same writer further states the rule to be, that each party has a day for giving notice, and that he will be entitled to the whole day, though the post by which he is to send it goes out within the day; and in support of these rules, two cases have been cited which bear considerable affinity to' this case. In Bray vs. Hawden, 5 Maul, and Selw. 68, it was decided that a party receiving notice of the dishonor of a bill on Sunday, gives notice in time by a letter put in the post office on Monday, in time for the Tuesday's mail, which took its departure at 12 o’clock, although there was a mail on Monday at 12 o’clock; and in 2 Barn, and Aid. 501, the plaintiff received notice by a letter on a Sunday, of the-dishonor of a, bill — he did not send notice to defendant until Tuesday's post, which set out in the evening. He might have sent it on the evening of Monday, by the Monday's post, hut on a motion for a new trial, after verdict for the plaintiff, the court held plaintiff’ was not bound to open the letter until Monday, nor bound to send notice until Tuesday; and the Supreme Court of the United, States, have decided that notice need not he sent on the day of the dishonor of a bill, in a case in which ■ the dishonor of a note occurred within their banking hours, and the mail left for the residence of the drawer, at half after 8 o’clock, on the same day. Bank of Alexandria, 9 Peters 45. A.usage it is true, was established in that case, to give the notice as it was given, but. Thompson J. in delivering the opinion of the court, declares the usage to be in conformity with the rule of law.

It would certainly not accord with the principles of the cases above cited, to adopt a rule, which would compel the ■bank upon dishonor, to give notice on the same day, and within a few hours after the dishonor. The mail here, closed in six hours after the customary banking hours, and in two of the above cases, a longer time had elapsed between the dishonor, and the starting of the mail, yet the holders were not held to give notice by the first post occurring within the day, or as in two of the cases to wait till the next day. It is true, in the cause now before the court, the mail did not go till sunrise of the 23d, but it was to all practical purposes the mail of the 22d, and not the mail of the 23d, because it closed at 9 o’clock of the 22d.

It is supposed that the case in 2 Wheat. 377, where it is said that notice of default of the maker, should be put in the post office, early enough to be sent by the mail of the succeeding day, is conclusive to shew, that the notice here, should have gone by the mail which left at sunrise on the 23d, but we have seen that for all practical purposes, this was but the mail of the 22d, as it closed on the night preceding at 9 o’clock, and it would have been impossible on Tuesday to have sent the letter by that mail, unless as a way letter, which we do not think the holder was bound to do.

It does not occur to us, that the fact of the mail’s not leaving Annapolis again, until sunrise of the morning of the 25th, could bind the plaintiff to extraordinary diligence, in putting the notice in the post office on the day of the dishonor, nor should that fact deprive the party of the benefit of the rule, which gave him until the next day to place his letter in the post office.

In confirmation of the above views, it is said in Chitty on Bills 314, that it is in no case necessary to give notice of the nonpayment of an inland bill of exchange on the day of refusal; and in the same treatise 315, is cited the case of

Exill vs. Jeremy and Bregg, Guildhall Sittings, after Hilliary term 1827, in which Abbott Ch. J. considered the rule too well settled to be disturbed, that a party who receives notice of the dishonor of a bill, is not bound under any circumstances, to forward notice to the prior party on the same day, but may wait until the next day, and if no post proceeds from the adjacent town, or village, on such next day, it then suffices, if he puts a letter in the post, on any following day, so that it be forwarded by the next practicable post, and in a report of the same case in 1 Moody & Malkin 61, the judge is made to say, that in these cases it is of great importance to have a fixed rule, and not to resort to nice questions of the sufficiency in each particular case, of a certain number of hours or minutes. The general rule is that a party need not write on the very day he receives the notice. If there be no post on the following day, it makes no difference. The next post after the day he receives the notice, is soon enough, notwithstanding in that case, the party might easily have given notice of the dishonor, by the post of the day he received the notice, because he received notice of the dishonor, at 9 o’clock in the morning, and the mail left at 6 o’clock, in the evening.

Considering the mail which left on the 23d at sunrise, as in fact the mail of the 22d, from its closing on that day, it would appear from the last cited case, that the plaintiffs here would have been in time, had they transmitted the notice by the mail which closed on Friday the 24th, not having been obliged to send notice on the day of dishonor, and there being no other mail going to defendants until the mail of Friday.

On the supposition therefore that the evidence of Cleary, is of such a character as to be admissible to prove that the notice was put in the post office on the 23d, we think the notice was in time, judgment affirmed.

In the case upon the note for $7857, the learned Judge said — ■

The evidence in this case is the same as that which was offered in the case between the same parties on a promissory note for $750, which has just been decided, except that in this cause, evidence was offered from the plaintiff’s letter book, of a letter dated 11th July, from the cashier to the defendaiit, notifying him that Lewis Duvall’s note, which the defendant had endorsed, remained unpaid, and that the defendant as endorser was held liable for the payment of the same, and of an entry opposite the said letter in the letter book, cc Put into the post office Annapolis, July 11th 1827,” and an admission of the defendant, that the said letter, and entry was in the handwriting of Mr. Pinkney, who was cashier of the bank, and that he was dead.

The same questions arose in this case as in the former, as to the demand on the maker, and as to the notification of non payment to the endorser.

Unless the letter above offered in evidence is of such a character, as that deductions may legally be drawn of a demand, there is nothing in this case, more than in the last, which would enable the plaintiff to recover upon that ground. It is supposed by the counsel for the plaintiff, that this evidence having been before the jury without objection, the cashier’s statement that the defendant was held liable for the payment of the same as an endorser, furnishes a ground for the jury to presume, that every thing had been done, which the bank was bound to do, in order to create a liability on the part of the defendant, and that as he was bound to make a demand to create such liability, it might be left to the jury to say, that such demand had been made. It is said, that it is evidence tending to prove the issue, and that under the authority of Davis and Barney, they ought to be permitted to deduce the fact of demand from the statement.

But we cannot concur with this view. It is a mere allegation of the cashier, that the bank intended to look to the endorser for the money, and contains upon its face no allegation of a demand, or any declaration that the note was at the bank, on the day of payment, or that any person was there authorized to receive payment, and give up the note. Whether a demand was made, may in many cases, and in this, would be a mixed question of law and fact, and if the jury could be permitted to deduce such a conclusion, from the letter, then they would be left to the determination of matters not within their province. Besides, it would be merely from wild speculation and conjecture, that such a deduction could be drawn, and we apprehend it was not the intention of the court, in Davis and Barney, to allow such cases to go to the jury, but that they may on application in all such cases inform the jury, that there is no evidence, or no evidence sufficient in point of law, to establish the fact sought to be proved. We therefore think in this case, as we did in the former between the same parties, that the evidence is not sufficient to prove the demand of the drawer, when the note became payable.

As to the notice in this case, if any was given, it is conceded it was in time.

The only remaining question, relates to the sufficiency of the entries in the letter book by the deceased cashier, to prove that a letter, the copy of the one adduced, was put in the post, and on the day mentioned in the margin of the letter book. If these entries are evidence, it cannot be doubted, but that the facts were fully established, because the entry declares the time when the letter was sent to the post, and so far from there being a doubt about the sufficiency of the evidence, there would be no reasonable ground to presume against it. But reliance is placed upon the inadmissibility of the evidence to establish the notice, and time of notice, growing out of the want of proof, that these entries were made by the cashier in the line of his duty as an officer of the bank. We however, think that no such objection can now be taken to the evidence, for it was all admitted without objection in the court below, and having been so admitted, it is, and ought to have the same effect, as if admitted according to the strict rules of evidence. So far therefore, as the court below determined that the evidence was insufficient to prove notice, at the time when the note became payable, we think the court below erred.

But inasmuch as there was no sufficient evidence of demand, we concur with the County court in the direction which they gave to the jury, that the plaintiff was not entitled to recover.

JUDGMENT AFFIRMED.