Minehart v. Handlin

Harrison, J.

bills andNotes <n-Twe r notiee^o° dishonor. The order on Sarber was a bill of -change, and as he was indebted to the defendant, or in other words, had effects of his in his hands, the defendant had . ( the nght to give it, ana upon its non-payment, was entitled to notice. Adams, Adm’r., v. Boyd, 33 Ark., 33.

wiien notice to The rule is well settled, that where the parties in different places, the notice should be deposited in postoffice, in time to go by the mail of the day after the dishonor, if the mail is not closed before early and convenient business hours of that day, in which case, it must be sent by the next mail thereafter,' or it may be sent by messenger, •or given personally, but must reach the party, at farthest, •on the same day it would have reached him in due course •of mail. 2 Dan. on Neg. Ins., sec. 1033, 1039.

That the defendant, when he gave the order, had really no expectation that Sarber would pay it — there was, however, no evidence of such fact — could make no difference. He had effects in his hands, and it was the duty of the payees to present it, and if not paid, give him due notice of its dishonor. The want of injury or prejudice to the drawer is not sufficient excuse for default in making demand or giving notice of dishonor. “The law requires,” says Daniel, “presentment and notice as conditions precedent to the fixed liability of the drawer and endorser, not merely as an indemnity against actual injury, but as security against a possible injury, which might result from the holder’s laches. It is true, that when the drawer has no funds in the drawee’s hands, he can, as a general rule, suffer no injury from want of presentment or notice ; but drawing in such a ease would be a fraud, and it is for that reason, rather than absence of actual injury, that presentment and notice are excused.” 2 Dan. on Neg. Ins., sec. 1176; Staples v. O’Kine, 1 Esp., 332.

The suit, however, was not on the order, but on the debt, for which it was given. 'If it was given as absolute payment of the debt, the debt was, of course, discharged; but. if not so given, did the failure to give notice of its dishonor have that effect? The authorities conclusively show that it did. Edwards says : “When a debtor'gives to his creditor a draft or bill of exchange, drawn' on a third person, and it is received in full satisfaction of the debt, when paid, the person so receiving it, assumes the duty of presenting it properlj'-, for acceptance and payment, and giving timely notice of its dishonor. Failing in cither of these respects, he makes the bill his own, and it is deemed a satisfaction of' the debt. So, when.a merchant buys a bill of goods, and gives a bill of exchauge in payment of the purchase money,, the vendor cannot recover in an action for the goods, without showing that the drawer has been regularly charged on the bill. Whether the bill is received as conditional payment, or on an agreement so to apply the money, -when collected, does not alter the principle ; for the duty of presenting the bill results from the nature of the security. Edwards on Bills, 423. Aud Daniel says: “So absolute is the necessity for notice to an indorser, in order to charge him, that if a note has been indorsed to the holder, in conditional payment of a debt, the failure to give notice to the indorser, will not only discharge the indorser, as a party to the note, but also as debtor upon the original consideration,, even though it be secured by a mortgage or deed of trust.

The note, then, is made ah absolute discharge of his liability, and the indorser must look solely to prior parties. And so in respect to a bill given in conditional payment.” 2 Dan. on Neg. Ins., sec. 971; Gracie v. Sanford, 9 Ark., 233; Adams, Adm’r., v. Boyd, supra.; Dayton v. Trully, 23 Wend., 345; 2 Am. Lead. Cases, 256.

It follows, that the court erred in its instructions to the-, jury, and in refusing to give those asked by the defendant..

The judgment is reversed, and the cause remanded.