Linn v. Horton , 17 Wis. 151 ( 1863 )

By the Court,

DixoN, C. J.

It is an established principle of mercantile law, that if the holder of a bill or note chooses to rely upon the responsibility of his immediate indorser, there is no necessity for his giving notice to any previous party; and if such notice be properly given, in due time, by the other parties, it will enure to the benefit of the holder, and he may recover thereon against any of them. Thus, if the holder notifies the sixth indorser, and he the fifth, and so on to the first, the latter will be liable to all the parties. 1 Parsons on Bills and Notes, 503, 504; and Edwards on Bills and Notes, 473, 474, and the cases cited. And it is no objection to such notice that it is not in fact received so soon by the first or any prior indorser, as if it had been transmitted directly by the bolder or notary, provided it has been seasonably sent by each indorser as he receives it. Colt vs. Noble, 5 Mass., 167; Mead vs. Engs, 5 Cow., 303; Howard vs. Ives, 1 Hill, 263. And the same degree of diligence must be exercised on the part of the indorser in forwarding notice as is required of the holder. Ordinary diligence must be used in both cases. He is not bound to forward notice on the very day upon which he receives it, but may wait until the next Howard vs. Ives, and the authorities cited.

For the purpose of receiving and transmitting notices, those who hold at the time of protest, and those who indorse as mere agents to collect, are regarded as real parties to the bill or note; the former as holders in fact, and the latter as actual indorsers for value. Mead vs. Engs; Howard vs. Ives.

It follows from these principles, that the proper steps were taken to charge the defendant Horton as indorser. Notice for him was forwarded by mail, postpaid, on the day of the protest, to the agents and last indorsers in New York, and delivered by them, on the day it was received, to the plaintiffs, their immediate indorsers, who, on the same day, deposited it, inclosed in an envelope, post-paid, in the post office at New York, directed to the defendant at Janesville, Wisconsin, his proper post office.

Under these circumstances the only question which can possibly arise is, whether the defendant ought to be discharged by reason of the notice not having been in fact received by him. He testifies that it was not. Professor Parsojsts observes that in all the cases of constructive notices, where notice given by a subsequent to a prior indorser has been held to enure to the benefit of the immediate indorser, it has appeared that the notice was actually received; and he raises a question whether this would be so, if the notice w;as sent to the wrong place. 1 Pars, on Notes and Bills, 504, note, and 627. But here the notice was sent to the right place. Besides, the plaintiffs, who seek to avail themselves of the notice, are the indorsers who sent it to tbe defendant as tbe indorser next immediately preceding them. We bave already seen tbat tbe rule of diligence as to tbem is tbe same as in tbe case of tbe bolder.

Let tbe judgment be reversed, and tbe cause remanded witb directions to enter judgment in favor of tbe plaintiffs according to the demand of tbe complaint. ■