ERROR to the circuit court of Washington county in the district of Columbia.
In the circuit court, the plaintiffs, as indorsers of the bank of Columbia, instituted this suit against the defendant, as indorser of a promissory note, dated 'Georgetown, May 6th, 1819,' for $3700, drawn by Daniel Reintzel, and payable at sixty days to the order of the defendant. The note was protested, when at maturity, by order of the bank of Columbia the holders.
The plaintiffs gave in evidence the protest of the note, stating, 'that payment thereof had been duly demanded of the maker, on the third day of grace, and refused, and the usual notice of dishonour left next day at the store of James Corcoran, (the son of the defendant) in Georgetown.'
Two written papers were also put in evidence; one a letter from Thomas Corcoran the defendant, dated at Georgetown, May 8th, 1822, and addressed to 'O. Krutz, cashier, &c.' saying, 'Mr Rind having called on me on the subject of Mr Reintzel's notes, I have no hesitation in saying, that I will not take any advantage of the limitation act, for my indorsement on the note of $3700, dated 6th May 1819, and the note of $400, dated 27th May 1819; the other note I have no knowledge of, and will call at bank to morrow for some explanation of it.'
Also a warrant of attorney in blank, dated December 14th, 1824, authorizing the docketing of suits at the ensuing term for the use of the bank of the United States, on these notes of Daniel Reintzel, viz. two of $400 each, and one of $3700, all due in 1819.
This paper was sent to the defendant for his signature, by Mr Richard Smith, the cashier of the bank of the United States, and the defendant addressed to him the following letter.
'Dear sir;-If Mr Reintzel should not be able to satisfy the bank before court, and they determine to bring suit, I will instruct and authorise Robert Dunlap, esq. to docket the case for me. December 16th, 1824. THOS.C.ORCORAN.'
Benjamin F. Mackall, the notary who made the protest, was examined on the trial, and produced his notarial book, in which he recorded all his protests, and in which he had entered the protest of the note upon which this suit was brought. He stated 'that the demand and notice were made and entered in the book, and that although he had no recollection in relation to these notes, he believed that demand and the notice thereof were made as stated in the book;' that at the time of the demand and notice of the notes, the defendant lived in a house in Georgetown, except the lower front room thereof, which was occupied separately, as a store, by one James Corcoran, the son of the defendant. There was a separate entrance to the dwelling part of the house, occupied by the defendant, through an alley or passage apart from the store, which led to the upper rooms, apart from the house; and he believes the notice of the note was left by him at the store, because he thinks he frequently had notices to give to the defendant, and was in the habit of leaving them at the store, and he never was in the dwelling part of the house occupied by the defendant, nor in the passage or alley.
It was also proved that James Corcoran, the son of the defendant, who occupied the store at the period referred to by the notary, had a family and a dwelling house apart from the store. The defendant at the time of the protest of the note, was post master of Georgetown, and kept the post office in another part of the town; where he transacted his private business, as well as the business of his office, and had no concern in the store. The defendant was often at the door, and about the door of the store. Another son of the defendant's, a single man, was concerned in the store; he lived with the defendant in the house, until some time in February 1819, when he left his father's family, but continued his connection with the store. It was also proved by James Corcoran, that until 1818, when the defendant took charge of the post office, written communications and notices for the defendant were sometimes left at the store, or at the dwelling part of the house; sometimes the persons bringing such notices were directed to take them into the house, and sometimes he took them at the store, and then, unless he forgot to do so, as he sometimes did, he delivered them to the defendant. After his father took the post office, if he had known that such communications or notices had been left at the store, he would have directed the persons who called with them to take them to the post office; or, if going there, he would have taken them, and unless he forgot, would have delivered them to the defendant; but he had no recollection of such fact having occurred. When the defendant took charge of the post office, that became the place where notices and communications were usually left; and where he transacted his business, both private and official, as post master and magistrate. The witness stated that he had no recollection of a notice of the protest of the note in suit having been left at the store.
The store never was, before or after the defendant took the post office, his place of business, or the place appointed for the delivery of notices or other communications for the defendant.
The defendant's counsel prayed the court to instruct the jury; that if they found, from the evidence, that the said notices were left at the store of the said James Corcoran, occupied by him separately from the dwelling part of the house occupied by the defendant as stated in the evidence, the notice is not sufficient to charge the defendant in this action, and the jury, on the said evidence, ought to find for the defendant on the first issue; which instruction the court gave. And the plaintiffs by their counsel prayed the court to instruct the jury, that if they found from the evidence, that notwithstanding the notices were left at the room occupied as a store by James Corcoran, yet, that the said store was the place where notices for the defendant were generally left, and that the notices in the case of these notes, were duly received by the defendant; then their being so left at said store, does not defeat the plaintiffs' right to recover, provided the defendant received said notices in due time. And that their said papers read in evidence by the plaintiffs, and signed and given to the plaintiffs by the defendant, as above stated, are competent evidence from which the jury may infer that the defendant did duly receive the said notices; which instructions the court refused to give.
The plaintiffs by their counsel excepted to the instruction given by the court, upon the prayer of the defendant; and to the refusal of the court to instruct the jury as required by them; and the case was brought up upon the bill of exceptions to this Court.
The counsel for the plaintiffs contended that the court erred
I. In granting the defendant's prayer.
1. Because the plaintiffs used due diligence.
2. Because, if not, it took the whole case from the jury, and directed them to find for the defendant, on the whole evidence, thus excluding any inference, they might have drawn from the evidence, that the defendant duly received the notice.
II. In refusing the plaintiffs' prayer; because,
1. The papers mentioned in it were competent evidence, from which the jury might, or not, have inferred that the notice was duly received by the defendant.
2. Because, if not, it took from the jury the right of inferring from the whole evidence, that the store of James Corcoran was the place where the defendant's notices were generally left; and that this notice was duly received by him.
The case was argued for the plaintiffs by Mr Lear and Mr Sergeant; and by Mr Jones for the defendant.
For the plaintiffs in error it was argued, that the declaration of the notary, that 'he believed' he had left the notice at the store, was sufficient evidence of the fact to be left to the jury. The many notarial acts he had to perform, rendered a distinct recollection of each impossible. The suit upon this note was delayed for the benefit of the defendant; and if the recollection of the notary is indistinct, it should not avail the defendant. Bank of North America vs. Potter, 4 Dall. 127. Miller vs. Hackley, 5 Johns. 375.
As to due diligence, a general rule has been established, and a non-compliance with this rule is claimed to be negligence. But the rule has exceptions in some cases, and upon the same principles which are applied in other cases. In the case of the Bank of Columbia vs. Lawrence, 1 Peters, 576, the Court have said that the rule must not be such as will clog commercial operations.
It is no part of the contract between the indorser and the holders, that he shall give him notice of the drawer's default, but the law has made it necessary. The notice is to inform the indorser that the holder looks to him for payment; but it is not indispensable that the notice shall reach him, if reasonable diligence has been used to accomplish the object. If notice was actually received, and so proved, the mode by which it came to the possession of the indorser is unimportant. This Court have said in the case referred to, that a person may have two places at which notices directed to him may be left; and in this case the defendant had a dwelling, and an office of business, the post office. The notice was left at the former, in a store where he frequently was; where notices left for him might reach him through his son, and from which it may be inferred they did reach him. The front door of the house was the door of the store, and to that door all who did not know that the alley had been made the main entrance would go; and the notary states he has frequently left notices there, without complaint, for the defendant, but he had never been in the alley. If the notice had been delivered to a servant, the notary going up the alley, it would have been said that the store was the proper place, as there notices had been left. The objection is one so nice, as to take away its force or application.
It is not a rule, that it is indispensable that the notice shall be the best the case admits of; for personal notice is always the best, but this is not always required.
The reply of the defendant to the application made to him in 1819 by the cashier, is sufficient to authorise the inference that he had notice. Upon this testimony, and the parol evidence, the question of notice should have been left to the jury. 12 East, 433. 2 Johns. Cases, 337.
The courts of Massachusetts have decided that a waiver of notice may be inferred from many acts. 4 Mass. 245. 6 Mass. 449. 9 Mass. 155. 159.
The plaintiffs had a right to submit the evidence to the jury, and they might have inferred notice; and when the court assumed to decide upon its insufficiency they invaded the province of the jury and erred.
Mr Jones, for the defendant, stated that the question raised in this case goes to the whole foundation of commercial law. The liability of the indorser of a note is contingent, and it is essential, as one of the requisites, to charge him to give him notice. There are cases in which some of the prerequisites have been dispensed with; but there are certain acts which are indispensable. The rule is universal, that the notice shall be the best the case admits of; and it is only in cases where there are difficulties in giving notice, that questions have arisen as to the mode in which it should have been given. If a party has a place of business, notice must be left there; if he has two, one or both may be adopted.
In the case before the Court, there was a notorious place of business, the post office; in which the defendant was post master, and a dwelling. In such a case there is no ground for equivalent notice. It is not pretended that the notary was ignorant of the facts.
The claim to support the notice on the ground that it was left at the store of the son of the defendant, cannot be maintained. The son was as a stranger would have been, for the law does not look at those relations. Nor was it of any consequence that the store was under the same roof with the defendant's dwelling; to all the purposes of this case it was the same as if it had been entirely separate.
Nor does the testimony which alleges that notices were sometimes left at the store, strengthen the cases, as it is not shown that the defendant ever recognized such proceedings.
Where notice is not sent in the regular mode, the law presumes it would not reach the party; and here the court were called upon to tell the jury, that if they believed the notice reached the defendant, they could infer notice, and they were required to say the notice was regular. This refusal was proper.
The written evidence shows nothing from which the jury could infer notice. When the defendant agreed to waive the statute of limitations, it was a declaration that he would not waive any other defence. His whole object in this arrangement was to benefit the drawer, and he is not to be supposed to have intended to prejudice his own rights.
Mr Justice WASHINGTON delivered the opinion of the Court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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