Haly v. Brown ( 1847 )

Rogers, J.

It is a rule of commercial law, that when facts are ascertained and undisputed, what shall constitute due diligence in communicating, no tice of the dishonour of a bill or note, is matter of law to be decided by tbe court; Brenzer v. Wightman, 7 Watts & Serg. 264; Jones v. Wardell, 6 Watts & Serg. 401; Brittain v. The Doylestown Bank, 5 Watts & Serg. 98 ; Spencer v. Bank of Salina, 3 Hill, 521. It would seem, therefore, that as there were no unascertained facts, the court erred ;in submitting the question of due diligence to the jury. But if they ought to have instructed the jury in accordance with the verdict no injury was done to the defendant, and this renders it necessary to inquire, whether due diligence was proved on the part of the notary, or the holder of the bill.

There are some principles of commercial law so well settled; as not, at this day, to need the aid of authority. Thus a notice of the protest of a bill' of exchange or note, to be given by one to another who resides in the same city, must be served personally, or by leaving it at his house or place of business; depositing it in the post-office directed to him, is not sufficient. But when they reside in different places, a notice of protest sent'by mail and directed to the endorser, at the nearest post-office, is sufficient, and if properly directed, it is good, although the letter containing it should miscarry; 11 East, 117; 3 Rawle, 355; 9 Watts, 279. Here the notice was clearly insufficient, for the endorser resided in Box-borough Township, in the county, and the nearest post-office, and the place where his letters on business were addressed to him was to the Manayunk post-office, and the .letter containing the notice ‘was put in the city post-office, with a direction to the defendant, without more. But it is said he is excused from giving the notice in the ordinary way, because the notary whom he employed for the purpose was ignorant of the endorser’s residence, and that he used due diligence to find it and notify the endorser. If this be. true, he is entitled to the benefit of the exception, but of this allegation we should have' some proof. The note in suit was put into bank for collection merely. The plaintiff, Brown, was the owner and holder of the bill, consequently the notary, so far as regards this transaetidn, was his agent, as well as the .agent of the bank. It was, therefore, the duty of Brown, either by himself or his agent, to give tlie defendant notice, or to.show that he as well as the notary was ignorant of his place of residence, and that he also used due diligence to discover where the endorser was to be found.

The holder of a bill of exchange, as is ruled .in Preston v. Daysson et al., 7 Louis. Rep. 11, cannot avail himself of the ignorance of the notary, as to the residence of the endorser and consequent neglect in giving notice of the protest. If he knows, he must disclose tlieir residence, as. it seems his neglect will discharge the endorsers.

When a notary is employed, it is the duty of the holder to inform him of the exídorser’s place of residence, and if this be omitted, the notary ought to apply to all the parties to the bill for information, and especially to the holder himself; Hill v. Varrell, 3 Greenleaf, 233. If the residence of the party to whom the notice ought to be given be not known to the holder, he must nevertheless not remain in a state of passive and contented ignorance, but must use diligence to discover his residence; Chitty, 453. It appears that a demand was made at the maker’s place of business, and that an inquiry was made without success, of his clerk, where the defendant resided; that the notary looked into the Directory, and inquired in vain of the letter-carriers at the post-office. Whereupon, according to the custom* of notaries, as he says, when they do not know the residence of the' endorser, he sent a notice to the endorsee, and at the same time a notice enclosed to the endorser. Had the notary inquired of Brown, the probability is, he would have been at no loss as regards the residence of the defendant, but instead of doing this, he do'es what is equivalent to it, by sending the notice for Haly to Brown, which devolved on Brown, in a reasonable time to send the notice of the dishonour of the note to the defendant. But was Brown, as is said, ignorant of his place of residence ? It may be so, but of this we ought to have some proof, however slight. He cannot remain, as we have already said, in a state of passive or contented ignorance. .

It is ruled that a maker is presumed to know the residence of the payee, and it would seem to me that a holder is presumed to know the abode at least of his immediate endorser. It is true, that in the case of a note endorsed in blank, the presumption is not so strong, and may of course be more readily rebutted, yet it exists notwithstanding. When a bill is taken in the ordinary course of business, it is usual to inquire, not only as to the ability of the parties to the bill, but also as to their place of residence, so far at least as to ascertain whether they live in the same city, county, or state, for that frequently, for divers reasons, will affect the value of the bill. It is difficult to believe, in the case on hand, that Brown did not know where Haly resided, and if he was ignorant of that fact, it is still more improbable he could not have ascertained his abode with ordinary diligence, so as to have given him timely notice of the dishonour of the note. Why this was omitted we are not informed. That it was - material that the defendant should have notice, appears from the fact, that he offers to prove that if he had been informed, of the dishonour of the bill he could have protected himself from loss. . ,.

Judgment reversed;,"and a venire de novo awarded.