President of the Bank of Utica v. De Mott , 13 Johns. 432 ( 1816 )

Spencer, J.,

delivered the opinion of the court.

The defendant is sued as endorser of a promissory note, payable at the bank of Utica. When the note .fell due, notice of its non-payment was given, by a letter put into the post-office at Utica, directed to the defendant, at Canandaiqua. It was proved that the defendant lived at Ovid, in the county of Seneca, and had resided there for ten years past. The excuse for the misdirection of the notice is, that the book-keeper who gave it, was informed, by the cashier and some of the directors of the bank, that the defendant resided at Canandaiqua.

The notice is bad. The defendant was entitled to information of the non-payment of the note, and that he was looked to for payment. He had a permanent residence, for ten years, in a different county. With ordinary diligence the place of his abode might have been ascertained; and it must be the plaintiff’s loss, not the defendant’s, that the notice was not given. It is an essential part of the contract, that the endorser shall be notified of the non-payment of the note, that he may take measures accordingly; and if any loss has happened from the want of notice, it must be borne by the party on whom the burden of giving due notice is thrown by law, and who has been guilty of laches. The case of Chapman v. Lipscombe & Powel, (1 Johns. Rep. 294.,) was peculiarly circumstanced. There was great diligence used in that case to find out the defendant’s residence, and the. bill was dated at Norfolk, to which place one of the notices was directed. Here the note was not dated at any place, and the inquiry was very limited.

Judgment for the defendant.