Williams v. Bank of the United States
THIS was a writ of error to the circuit court of Ohio; in which court, the bank of the United States has instituted a joint action, under the authority of the act of assembly of the state of Ohio, passed 18th February 1820, entitled 'an act to regulate judicial proceedings where banks and bankers are parties, & c.; and by the provisions of which, the plaintiff may make the drawer and indorsers of a note or bill of exchange, joint defendants in the same action. Thus the suit was against the defendant and two others; and the declaration contained a common count for money lent against all the defendants.
The pleas were non-assumpsit; and on the trial of the cause, two several promissory notes drawn by J. Embree, endorsed by D. Embree and Williams the defendant, in blank, were offered in evidence by the bank. On the subject of notice, the bank then gave the following parol evidence, which was the only proof offered, to wit: 'that the notary public, after the protest of the note, and the expiration of the usual days of grace, called at the house of the defendant (Williams), who lived in the city of Cincinnati. He found it shut up, and the door locked; and on inquiry of the nearest resident, he was informed, that the defendant and family had left town on a visit, whether for a day, or week, or month, he did not know, nor did he inquire. He made use of no further diligence to ascertain where said Williams had gone, or whether he had left any person in town to attend to his business. The witness left a notice at the house of a person adjoining, with a request to hand it to the defendant, when he should return.' The counsel for Williams submitted to the court, whether the above facts were sufficient evidence of legal notice to charge the indorser, and to entitle the plaintiff to judgment. The court decided that the evidence offered was conclusive against the indorser; to which decision a bill of exceptions was tendered and sealed, and judgment was then rendered for the bank, against Williams for $12,202.88.
The cause was argued by Mr J. C. Wright for the plaintiff in error, and by Mr Sergeant for the defendants.
Mr Wright maintained,
1. That this court erred in determining that the evidence of notice was sufficient to charge an indorser, and conclusive against him.
2. That the suit below was jointly against several persons, and the cause of action was for several undertakings, upon which there could not be a joint liability.
This Court having decided at the last term in the case of Fullerton and others vs. The Bank of the United States, 1 Peters's Rep. 604, that the act of the legislature of Ohio, which authorised this proceeding, was in force in the circuit court of the United States; Mr Wright declined arguing the second point, unless the Court should be desirous of hearing a re-argument upon the question. Upon the first point, he contended that the holder of a note is bound to give personal notice of non-payment to the indorser; or to see that it reaches his dwelling, or place of business, if he has one. 10 Johns. Rep. 490. 11 Johns. 231. The contract of an indorser is contingent; it is that he will pay the note on the default of the drawer; and the court cannot change the nature of his obligation. Notice must be given and proved, or facts must be proved which will enable a jury to presume notice.
In this case the facts do not establish any thing equivalent to notice. The defendant was a resident in the city of Cincinnati, and had a right to personal notice at his dwelling house. The notary called at the house, and not finding the defendant at home, but finding the house shut, perhaps only for an hour, he left the notice with a person who was not called upon to deliver it, and who, it is to be presumed, never did deliver it to the plaintiff in error. The notary did not do what would have been an equivalent act, put the notice in the post office. 2 Johns. 275.
The law may require a merchant to keep his counting house open during the hours of business; but it does not follow, that a person must keep his house open during all the hours of day-light, and in his absence a person to be always in the house. The testimony in this case falls short of the requisites of the law, and authorises a presumption in favour of the claims of the plaintiff in error. While it is fair and proper to draw such an inference, it is not so to infer facts which should have been proved, from other facts which are in evidence. The court should have left the facts to the jury, and their inference from the proof given by the bank was error.
Mr Sergeant for the defendants.
There are four cases depending in this Court upon the question of notice; and the decisions of the circuit court were given in them all before the case of the Bank of Columbia vs. Lawrence, 1 Peters, 578.
This case was decided by the circuit court without the intervention of a jury, the facts having been submitted to the court. It cannot therefore be objected that the facts were withdrawn from the jury.
The evidence given by the plaintiffs below was affirmative and positive proof of due diligence; and what is due diligence is a question of law, and was properly decided by the court. Tindall vs. Brown, 1 T. R. 167. Chitty, 290, n. 1.
It is not necessary that the notice of the default of the drawer, which the indorser has a right to require, shall be in writing. The obligation is to call at the dwelling house of the indorser, or at his place of business, and if he has left no one there to attend to his affairs, it is his loss, and the holder of the bill or note has done his duty, and all that the law requires. Goldsmith vs. Bland, cited in Bailey on Bills, (4th Lond. ed.) 224, 5. 1 Maule & Selwyn, 545. Chitty on Bills, (Am. ed.) 284, 5. note a. Id. 276; cases in note 1. 288.
The difference between the requisites for legal notice at the place of business and dwelling house is, that if notice is given at the former, it must be in the hours of business; but the dwelling house being the place of permanent abode, the notice may be given at any hour of the day.
In this case it is denied that what ought to have been done was done. The rule of the commercial law is, that you shall come as near to what is required as you can; and if the party has put it out of your power to do more, you have done sufficient. Here the indorser having left his house shut up, and not having left an agent to attend to his business; shall not be permitted to avail himself of his own neglect, but must take the consequences of the same.
Mr Justice WASHINGTON delivered the opinion of the Court.