Opinion
JANUARY TERM, 1829.
Notice to the indorser of a promissory note of non-payment by the drawer. C. the indorser of the note, at the time it fell due, lived in a house in Georgetown, except the lower front room, which was occupied separately, as a store, by one of his sons. There was a separate entrance to the dwelling part of the house through an alley or passage, apart from the store, which led to the upper rooms, and back buildings, and yard of the house. The son of C, who occupied the store, had a dwelling house separate from the store. C. was at that time post master of Georgetown, and kept the post office in another part of the town; where he usually transacted his private business as well as that of his office. C. had no concern in his son's store, but he was frequently about the door. Until he took charge of the post office, which was a year before the note fell due, written communications and notices for him were sometimes left at the store, and were carried by another of his sons, unless when he forgot it, to him. After C. took possession of the post office, if notices had been left at the store for C., the bearer of them would have been directed to take them to the post office; or they would have been delivered to him by his son at the post office, if recollected, or if they had been seen when left at the store. The notary stated that he believed the notice of non-payment of the note was left at the store, because he thought that he had frequently notices to give to the defendant, and was in the habit of leaving them at the store, and he never had been in the dwelling house, or in the passage or alley. Held, that this notice was not sufficient of non-payment of the note, to charge C. with a liability to pay the note. If notice of the non-payment of a note, although left at an improper place, was nevertheless, in point of fact, received in due time by the indorser, and so proved, or could from the evidence in the cause be properly presumed by the jury; it is sufficient in point of law to charge the indorser. [132] Presumption from evidence of the existence of particular facts, are in many cases, if not in all, mixed questions of law and fact. If the evidence be irrelevant to the fact insisted upon, or be such as cannot fairly warrant a jury in presuming it, the court is so far from being bound to instruct them that they are at liberty to presume it; that they would err in giving such an instruction. [133]
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.
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. CORCORAN."
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 the 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.
This case comes up by writ of error from the circuit court for the district of Columbia and county of Washington.
The suit was brought by the plaintiffs in error against the defendant, as the indorser of a promissory note of Daniel Reintzel for $3700, payable 60 days after date, and dated the 6th of May 1819. The only question in the cause turns upon the sufficiency of the notice to the defendant, the circumstances attending which appear in a bill of exceptions taken by the plaintiffs to the opinion of the court. From this it appears, that the plaintiffs gave in evidence a letter from the defendant to the cashier of the bank of Columbia, where this note was discounted, bearing date the 8th of May 1822; in which the writer, after mentioning that he had been applied to on the subject of Reintzel's notes, says, "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 of May 1819, and the note of $400, dated 27th May 1819; the other note I have no knowledge of, and will call at the bank tomorrow for some explanation of it."
These notes having been transferred to the bank of the United States, the cashier of that bank, on the 14th of December 1824, sent to the defendant a paper for the signature of himself and Reintzel, containing a general authority to some attorney to docket suits against them at the next ensuing term of the court, in the names of the president, directors and company of the bank of the United States, for the use of that bank, and of the United States, on three notes of Daniel Reintzel, two of $400 each, and one of $3700, all due in 1819. On the back of this note was indorsed the following address signed by the defendant, viz. "Dear Sir; — If Mr Reintzel should not be able to satisfy the bank before the court, and they determine to bring suit, I will instruct and authorise Robert Dunlap to docket the case for me. December 16th, 1824."
The plaintiffs proved, by the notary who made the protest of this note, who produced at the trial his notarial book, in which he recorded all his protests, and in which he had entered the protest of the note in question, and the demand and notice; that the said demand and notice were made and entered in the said book, and that although he had no recollection in relation to these; yet he believed the demand and the notice thereof were made as stated in his said book. He further stated, that at the time of the said demand and notice, the defendant lived in a house in Georgetown, except the lower front room thereof, which was occupied separately as a store by James Corcoran, his son. That 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 and back building and yard of the house; and that he believed the notice was left by him at the said store, because he thought that he had frequently notices to give to the defendant, and was in the habit of leaving them at the store; and never was in the dwelling part of the house occupied by the defendant, nor in the passage or alley leading to it.
It was further proved, that James Corcoran, who occupied the store at the time spoken of, had a family, and a dwelling-house apart from his store; and that the defendant was then post master of Georgetown, and kept the post office in another part of the town, where he commonly transacted his private business, as well as that of his office; and had no concern in his son's store, but that he was often at the door, and about the door of the store; that Thomas, another son of the defendant, was concerned with his brother in the store, and was an active partner, attending in the store to the business thereof; but that he was a single man, and lived with the defendant in the house aforesaid until February 1819; after which he ceased to live in his father's family, but continued his concern and attention in the store.
It was further proved, by the before mentioned James Corcoran, that until the defendant took charge of the post office, which was in the year 1818, written communications and notices for the defendant were sometimes left at the before mentioned store, or at the dwelling part of the house; that the witness sometimes directed the persons bringing such notices to take them into the house, and sometimes he took them at the store, and then, unless when he forgot to do so, as he sometimes did, he delivered them to the defendant; that after his father took the post office, the witness, if such notices or communications had been left at his store in the presence of a witness, would have directed the bearer of them to take them to the post office, or, if he were going there, would have taken them himself; and that if he had done so, he would, unless he forgot it, have delivered them to the defendant; but he had no recollection of any such fact having occurred. That when the defendant took charge of the post office, that became the place where his notices, communications, c. were usually left, and where he transacted his business, both private and official, as post master and magistrate. The witness had no recollection of ever having seen or known of any notices being left at his store of the protest of the notes now in suit. That 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.
After the above evidence was given, 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 James Corcoran, occupied by him separately from the dwelling part of the house, occupied by the defendant as stated in the evidence; the notice was not sufficient to charge the defendant in this action, and that the jury, on the said evidence, ought to find for the defendant on the first issue; which instruction the court gave.
The plaintiffs then prayed the court to instruct the jury, that if they find 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 regard to these notes were duly received by the defendant; then their being so left at the said store, does not defeat the plaintiffs' right to recover, provided the defendant received the said notices in due time; and that their said papers read in evidence by the plaintiffs, and signed and given to them by the defendant, as above stated, are competent evidence from which the jury may infer that the defendant did duly receive such notices. This instruction the court refused to give; to which refusal, as also to the giving of the instruction, prayed by the defendant's counsel, the exception was taken by the counsel for the plaintiffs.
The only question which the case presents is, whether such notice was given of the non-payment of the note on which this suit was brought, as the law requires to charge an indorser? It is not pretended that it was given to the defendant personally, either verbally or in writing, or that a written notice was left at his dwelling house or place of business, or that the holders of the note were prevented from giving the notice at any time by the absence or fault of the defendant. His place of residence, and the way by which access to it was to be gained, was known to the notary; and it is quite improbable that he was ignorant of the place at which he transacted both his private and public business.
The inquiry is then narrowed down to the sufficiency of a notice left at the store of James Corcoran, a son of the defendant, with which the defendant had no concern, and which was not his place of business.
The store of the son was as distinct and separate from the dwelling of the father, as if they had been under different roofs. The former was entered from the street, the latter from an alley or passage; and it does not appear that there was any inside communication between the two. Overlooking for the present, the circumstance that the notary had been in the habit of leaving notices for the defendant at the store, it must be admitted that the service of the notice in question at the store, was no more a compliance with the requisition of law, than if it had been delivered to the son in the street or elsewhere, or left at his dwelling house.
Is the case then altered by the circumstance just mentioned? We think not. It seems from the evidence, that the store never was, at any period, the place appointed for the delivery of notices or other communications to the defendant. But if it had been, the note in question came to maturity some time in the month of July 1819, and the proof was, that the defendant took charge of the post office sometime in the year 1818; after which, that became the place at which notices and other communications to him were usually left, and where he transacted both his private and public business. Were it to be admitted that the service of a notice at a place not appointed by the defendant as the one at which notices to him were to be delivered, would be sufficient in law to charge him, upon the ground that other notices had been previously left at the same place; it would surely be too extravagant to contend that a service at the same place would be legal, after another place had been appointed for that purpose, and where they had in point of fact been usually left.
It is unnecessary to pursue this inquiry further; because although the sufficiency of the service of the notice generally was insisted upon by the counsel for the plaintiff in error in argument, yet the instruction asked for by the plaintiff in the court below, placed its validity not merely upon the circumstance that the store was the place where notices for the defendant were generally left; but upon the additional and stronger one, that the notice in this case was duly received by the defendant.
Now it must be admitted, that if the hypothesis that the notice in this case, though left at an improper place, was nevertheless in point of fact received in due time by the defendant, were proved, or could from the evidence in the cause be properly presumed by the jury, it was sufficient in point of law to charge him. In the case of Ireland vs. Kip, 10 Johns. 490, 11 Johns. 231, it was decided, that admitting a service of notice at the house in Frankfort street, where the defendant had directed his letters to be left by the letter carriers, would have been good and equivalent to service at his dwelling or counting house; still the notice, though improperly put into the post office, would be sufficient; if it were accompanied by proof that it had actually been delivered at the dwelling house of the indorser, or at the house in Frankfort street.
But in the present case, there was not a scintilla of direct or positive proof that the notice in question ever reached the person, the dwelling house, or place of business of the defendant, and the court was called upon by the plaintiffs' counsel to instruct the jury that the papers which they had given in evidence were competent evidence from which the jury might inter that the defendant did duly receive the said notice. Was the court wrong in refusing to give this instruction?
Presumptions, from evidence given in a cause of the existence of particular facts, are in many, if not in all cases, mixed questions of law and fact. If the evidence be irrelevant to the fact insisted upon, or be such as cannot fairly warrant a jury in presuming it, the court is so far from being bound to instruct them, that they are at liberty to presume it, that they would err in giving such instruction. For why give it, when it is manifest, that if the jury should find their verdict upon the fact so deduced, it would be the duty of the court to set it aside, and to direct a re-trial of the cause?
Let us now see what were the papers which the plaintiffs had given in evidence, which the court were called upon to declare to the jury were competent evidence from which the jury might make the inference insisted upon.
The first is the letter of the defendant, dated the 8th of May 1822, and addressed to the cashier of the bank of Columbia, in which he declares that he will not take any advantage of the limitation act, for his indorsement on this and another note; the blank authority sent to the defendant by the cashier of the bank of the United States on the 14th of December 1824, for the signatures of the defendant and of the maker of the notes, purporting to empower some attorney to docket suits against them on these notes, with a declaration indorsed thereon by the defendant, that if the maker of the notes should not be able to satisfy the bank before court, and they should determine to bring suit, he would instruct a particular person to docket the case for him.
Let it be admitted that these papers bound the defendant to abstain from making a particular defence to which the law entitled him, and to cause the action intended to be commenced against him to be docketed, so as not to delay the plaintiffs, could the jury from thence infer with any legal propriety, either that the necessity of proving notice of the non-payment of the notes would be dispensed with, or the fact, that the notice left at the store of James Corcoran was received by the defendant at any time, much less in due time?
If this was a question of inference fit to be submitted to the discretion of the jury; it seems to the Court that the rules respecting this subject, which have been laid down with so much care, would no longer be fixed and certain, but would change with the varying conclusions which a jury might draw of the fact, from evidence however slight given to prove it. What, for example, does the rule that notice must in certain cases be served personally upon the indorser, or be left at his dwelling house or place of business, signify, if a jury may from any evidence, however remote from the fact, presume that the notice, though left at any other place, may have found its way to the hands of the person whom it was intended to charge?
It was insisted by the counsel for the plaintiffs, that the evidence above noticed, and alone relied upon in the instruction asked for to warrant the inference, was strengthened by the circumstance of the connexion between the defendant and the owner of the store where the notices for the former were sometimes left. But if this circumstance stood alone in the case, and a notice delivered to the son who was not a member of the father's family, would not be a legal notice, nor competent to warrant a presumption that it had reached the father, which it unquestionably would not, the question cannot be affected by its being thrown in as a make-weight with other circumstances in themselves insufficient to justify the conclusion.
In the case of Ireland vs. Kip, the circumstances to induce a presumption that the notice reached the defendant were certainly as strong as they could well be. The letter carrier was directed to leave all letters for the defendant at a certain house in Frankfort street. The carrier called at the post office three or four times every day, and took out, and delivered all letters left there; and the defendant usually sent or called every day at that house for his letters. Upon the second trial of this cause, the plaintiffs insisted upon the above evidence, that the jury had a right to presume that the notice in question had been duly received by the defendant. But the chief justice who tried the cause, instead of leaving it to the jury to make this presumption, overruled the whole of the evidence offered by the plaintiffs, and directed a non-suit. When the case came before the supreme court, it was there stated by the judge who delivered the opinion, that it would be extremely embarrassing to suffer the rule to fluctuate, by making exceptions which would lead to uncertainty, and that it was of the utmost importance in mercantile transactions, to have a certain and stable rule in relation to notices, — in which sentiments this Court entirely concur. That court finally decided, that, as it did not appear that the notice was left at the defendant's place of business in Frankfort street, and it did appear that he resided in the city, the non-suit was correct. If this case be law, as to which we are not now called upon to give an opinion, it is in point upon the very question now under consideration.
If the court below then committed no error in refusing to give the instructions asked for by the plaintiff's counsel, they were right in giving that which was prayed for by the defendant's counsel, which merely affirmed, that the notice left at the store of James Corcoran, occupied by him separately from the dwelling part of the house occupied by the defendant; if the facts were so found by the jury; were not sufficient to charge the defendant, and that on the said evidence they ought to find for the defendant on the first issue; —
It is the opinion of this Court, that the judgment of the court below ought to be affirmed with costs.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is considered, ordered, and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs.