Odlin v. Stetson , 17 Me. 244 ( 1840 )

The opinion of the Court was by

Siiepmís J.

When a person offers his services to the public in any business, trade, or profession, there is an implied engagement with those who employ him, that he will perform the business entrusted to him faithfully, diligently and skilfully. And if he fails to do so, he is answerable for the damages suffered by reason of such neglect. This engagement is limited however by the nature of the business, and often also by its being carried on only in a particular place. Thus an insurance or ship broker resident in a certain city would not be expected to effect insurance or obtain a freight in a distant city, unless such were proved to be his usual course of business, without a special undertaking to do it. So a notary cannot be expected to perform the duties of an attorney, or an attorney those of a notary, without some special engagement, unless there be proof of a combination of these employments or of a course of business authorizing those employing him to expect that he will do so.

The case finds, that the defendants were not notaries; and it does not appear, that they had so conducted their' business as to authorize any one to expect them to act in any other character or manner than is usual for attorneys. The Court must understand from the law, and from the customary course of business as exhibited in cases coming before them, that negotiable paper is placed in the hands of a notary or special agent to have the necessary presentment made and notices given. Cases may and do occur, where an attorney acts also as a notary, and where also an attorney is called upon for advice respecting the manner of performing these duties ; and he may in such and probably in other cases undertake to have them properly done, and in such cases he will be responsible. The defendants were established in business in Bangor, and they could no more be expected without any agreement to do so, to perform duties out of Court in a distant place in the same county, than a broker or tradesman having an established place of business could be. The note having been left with them before it became payable, an inference is drawn, that they must have known, that it was the desire and expectation of the' holders, that the liability of all parties to it should be preserved. There may however be' notes esteemed by the holders to be so well secured by the names of the makers, that they would not desire1 to incur the expense of a special messenger to make a demand at a distant place for the purpose of retaining the liability of the indorser. And others, where the remedy against the indorser is known to be of little or no importance. As no intimation was given when the note was left, that the maker was not perfectly able to pay, or that the indorser was of ability, or that any thing more was desired or expected, than the usual course of suing- out the writ an'd making efforts to secure the debt in case of neglect to pay at maturity, the defendants' were not bound to believe, that any unusual expense was to' be incurred, or that an unusual course for an attorney was to be pursued. Without any proof, that it was within the usual course of business at' that place, and without ány instructions to present the nóte to the' maker and notify the indorser, or any knowledge that it was important for the interest of the plaintiffs that it should be done, and without funds to pay the' expenses, the defendants cannot be regarded as having undertaken to make such a presentment at a place thirty miles distant from their place of business. It is said they might have notified the indorser by addressing a notice to him through the post office ; but Such a notice'without a presentment would have been wholly inef-' fectuaL-

Plaintiffs nonsuit