Opinion
December Term, 1841.
1. Protest of an order or inland bill of exchange is not necessary to enable the holder to recover principal and interest. Notice in due time of nonacceptance or nonpayment is all that is required for that purpose.
2. It is generally held that the holder must give notice of nonacceptance or nonpayment on the next day or by the next post, when the parties live in different places.
3. A delay in giving notice from 10 to 24 March held to be unreasonable and to discharge the drawer.
APPEAL from Pearson, J., at Spring Term, 1841, of RANDOLPH. (135)
Mendenhall for plaintiff.
No counsel for defendant.
The plaintiff declared in assumpsit on the following instrument in writing, to wit: "26 February, 1837. Jonathan Church, Esquire, please pay to M. M. Troy or order, $32.68, and charge yours, etc. John B. Troy," which was indorsed to the plaintiff by M. M. Troy for a valuable consideration.
The defendant pleaded the general issue. On the trial the plaintiff, after reading the instrument declared on, offered in evidence, a letter from the plaintiff to the defendant dated "Greensboro, 24 March, 1837," in which he informed the defendant that he had "received a short time since" from the indorser, M. M. Troy, an order on Jonathan Church for the sum above specified, and that he had "presented the order and Church failed to pay it off," and that he had understood Church had made away with his property. He then adds: "I have thought proper to give thee this information, believing that thee would do what is right and just in the case." The plaintiff then by consent of the defendant's counsel read a letter from John M. Logan to the defendant dated "Greensboro, 20 May, 1837," in which he stated that he had received on the morning of that day a letter from him "requesting me to give you some information respecting an order of yours to J. Church." He continues: "Jacob Hubbard handed me an order on Church from you on 10 March, 1837, or about that time, to present to Church when I went to Jamestown. I think I presented the order on that day to him. He said it was not due until April, and he would get the money from Washington City at that time and pay you according to the bargain he had made with you." Logan further adds that he returned the order to the plaintiff, and told him what Church said, and "that Church was bad to get money from at that time, from what he learned when in Jamestown." When the plaintiff closed his case the defendant's counsel moved the court that the plaintiff be nonsuited, first, on the ground that there had been no protest for nonacceptance, as required by the act of Assembly (Rev. Stat., ch. 13, sec. 2); secondly, that the notice from the plaintiff to the defendant did not state that the plaintiff would not give Church, the drawee, any further credit, and that he looked to the defendant for payment; thirdly, that the plaintiff had not used due diligence in (136) giving the defendant notice of the nonacceptance of the drawee. A verdict was rendered for the plaintiff for the full amount of the order, with interest from the date, subject, however, to be set aside and a nonsuit entered if the court should be of opinion for the defendant on the above points reserved. The court having sustained the defendant's objection, ordered the verdict of the jury to be set aside and a nonsuit entered, from which judgment the plaintiff appealed.
Notwithstanding the act of 1762, Rev. Stat., ch. 13, sec. 2, the action is maintainable for the principal and interest due on the order, although not protested for nonacceptance. In practice, inland bills have always been recovered on to that extent without a protest. Our statute is like those of 9 and 10 Will. III., ch. 17 and 3 and 4 Anne, ch. 9, sec. 4, from which it was probably taken. They all relate to damages and the costs of postage, brokerage, commission, and the like, none of which can be recovered without protest. But it has long been held that the remedy given by those statutes is cumulative; and that, therefore, upon notice of nonacceptance or nonpayment of an inland bill, a recovery may still be had at common law. Brough v. Parking, 2 Ld. Ray., 992; Harris v. Benson, 2 Strange, 910; Windle v. Andrews, 2 Barn. and Ald., 696. Hence, in a declaration on an inland bill, it is not necessary to set out a protest, as it is in the case of a foreign bill. In the latter case the protest is part of the custom of merchants, on which the liability of the drawer arises; and, therefore, the fact must appear on the record. Were there nothing more in this case than the want of a protest, the plaintiff would be entitled to judgment. (137)
But we think he must fail for the want of diligence. We need not advert to the question whether the bill was presented for acceptance in due time; for, supposing it was, yet we think the notice to the defendant of nonacceptance was out of time, and for that reason he was discharged from liability on the bill. The plaintiff, by his agent, presented the bill on 10 March, when the drawee denied the debt to be due and refused to accept. Moreover, it appears from the plaintiff's letter that he had heard a report that the drawee had made way with his property. He then knew there was danger; and yet he postponed giving notice for fourteen days — until 24 March. A holder ought to let the drawer of a bill know of its dishonor as soon as he conveniently can. He need not lay by everything he has in hand to do it immediately; but it is generally held that he must give notice the next day, or by the first post, when the parties live in different places. We do not see how the delay that occurred in this case could be accounted for. But if it could, it has not been; and without some explanation it was undoubtedly unreasonable. The judgment must be
PER CURIAM. Affirmed.
Cited: Farmer v. Willard, 71 N.C. 286; Shaw v. McNeill, 95 N.C. 539; Bank v. Bradley, 117 N.C. 530,; 531; Neal v. Hardware Co., 122 N.C. 106.
(138)