Opinion
December Term, 1820.
1. The drawer of a bill of exchange is entitled to notice of its dishonor, though the drawee be not indebted to him either when the bill was drawn or fell due, provided the drawer had reasonable ground to believe that it would be honored; and a written authority from the drawee to the drawer for the latter to draw is a sufficient ground.
2. If the bill be payable after sight it must be presented within reasonable time for acceptance, and immediate notice of non-acceptance given to the drawer. It is not sufficient to give notice of the non-acceptance and non-payment together after the day of payment has passed.
3. If, in such case, the drawer be discharged by the laches of the holder from his liability on the bill itself he will not be liable on a count for money had and received.
THIS is the same case which has been before in this Court, ante, 71, and now comes here by appeal of the defendant, from HALIFAX. It was an action of assumpsit, and the declaration contained a special count on the bill mentioned hereafter, and also a count for money had and received. By the opinion of the court below, the plaintiff had a verdict for the principal money (195) and six per cent interest, and judgment accordingly.
Mordecai and Seawell for the defendant.
Gaston for the plaintiff.
The facts of the case, and also the points made at the bar, are fully stated by the Chief Justice.
The only question to be decided in this case is whether the plaintiff be entitled to recover on the count for money had and received — the count upon the nonacceptance of the bill having been abandoned because there is nothing in the case tending to show notice of such nonacceptance.
The material facts are, that on 11 and 20 April, 1815, E. Riggs, the drawee of the bill wrote two letters to Rodman, the drawer, informing him that he had chartered the Aurora to go to Washington, in this State, for a cargo of naval stores, and directing Rodman to draw on him at Georgetown. The vessel arrived and began to load on 15 May, and completed her loading on 9 June; but as part of her cargo was to be taken in at Occacock, she did not finally depart from our waters until 23 June. On 13 May, two days before the ship began to load, Rodman drew this bill on Riggs, at Georgetown, for one thousand dollars payable thirty days after sight, in favor of the plaintiff or order. There is a memorandum on the bill of its being noted on 27 May; but the only protest is that for nonpayment, which was made on 30 June; and on the same day, the notary put a letter into the post-office at Georgetown, giving Rodman notice of the nonpayment and protest. From these facts, we shall be able to ascertain whether there has been any laches on the part of the holder of the bill; for it is a very clear position that if the drawer is discharged upon the bill by such laches, it is not competent for the plaintiff to recover upon the other count, for money had (196) and received. As this bill was payable within a certain period after sight, a presentment for acceptance was necessary, and notice ought immediately to have been given of the nonacceptance to the person meant to be charged. It is not sufficient, in such case, to wait till the time of payment has arrived, and then to give notice of nonacceptance as well as nonpayment. 12 East., 434. It is a presumption of law that the drawer is prejudiced by the want of notice, and the circumstances of this case demonstrate the wisdom of the rule. If notice had been given to Rodman of the non-acceptance, it would have reached him before the departure of the ship from the State, and have thus given him an opportunity of indemnifying himself for any advances for the cargo. The notice of non-payment could have been of no use to him in this view, for it was put into the post-office after the ship had sailed on her voyage.
It is, however, relied upon by the plaintiff that this is a case where the law dispenses with notice, since it appears in the case that Riggs owed Rodman nothing, either when the bill was drawn or when it was protested. That such an exception to the rule of giving notice was established in Bickerdike v. Bollman, 1 Term, 410, and has been acted on in many cases since, cannot be disputed. But it is equally true that the inconvenience of relaxing the rule has been the subject of regret; and a strong disposition has been manifested by the judges to qualify and restrain the exception itself. They have accordingly said that actual value in the hands of the drawee at the time of drawing the bill was not essentially necessary to entitle the drawer to notice in case of a dishonor; but if the drawer had good ground to think that he had a right to draw, as where he had made a consignment to answer the bill, though it might not have reached the drawee when the bill was presented for acceptance, or where an acceptance is expected to be made on the ground of a fair mercantile agreement, and in several other cases (197) depending on the same reason, it has been held that notice is not dispensed with. In the case before us, Rodman had not only ground to believe that his bill would be honored, but he drew it under the express written authority of Riggs, and this I should deem sufficient of itself to entitle him to notice. The law, therefore, arising upon the facts before us, is clearly for the defendant. If there be other circumstances belonging to the case which are not incorporated in the statement, the parties will have an opportunity of establishing them upon another trial.
The judgment must be reversed and a new trial awarded.
Cited: Johnston v. McGinn, 15 N.C. 278; Love v. Raper, 39 N.C. 479.
(198)