26 agreement binds the drawer and indorser.25 But if the indorser of the note puts upon it the maker's residence, when he indorses, or, on principle, at any other time, he ought to be bound by a demand at that place, unless the holder ascertains or ought to have ascertained that the address was a mistake, or unless the maker had changed his residence afterward to the knowledge, actual or imputed, of the holder. Where the place of demand is provided for as herein stated, presentation there is sufficient whether the person upon whom demand is to be made is found there or not.27 But it should be remembered that if demand is made at a bank it must be during business hours, or if thereafter upon some officer competent to answer while in the bank, and if at any other business house it must be during business hours. 29 § 259. Demand where no place stipulated.- Where the paper itself does not provide for the place of its presentation, as explained in the preceding section, the general rule is that the demand must be a personal demand. This personal service of a demand may be actual or constructive. If it is actually personal, it is made wherever the person upon whom the demand is made may be found. It is immaterial where this may be, whether at his office or place of business;1 at his residence; or upon the street, if not objected to;3 and it is immaterial at what time the demand is made, provided it 2 the agreement dispensed with the place designated in the paper. See Herring v. Sanger, 3 Johns. Cas. 71, and Nugent v. Mazange, 2 Mart. (O. S.) 264. 29 See § 250, ante. 1 See cases in note 5, infra. 3 King v. Crowell, 61 Me. 244; Townsend v. Heer Dry Goods Co., 25 See § 233, ante, note 2, and notes 85 Mo. 503; Parker v. Kellogg, 158 14 and 15, supra. Mass. 90 (the demand was not ob26 Farnsworth v. Mullen, 164 Mass. jected to); but King v. Holmes, 11 112; Nugent v. Mazange, 2 Mart. Pa. 456, holds the demand not good (O. S.) 264. The limitation is made if the person had a place of busion the authority of a similar prin- ness. A barnyard may be considciple. Pierce v. Struthers, 27 Pa. ered a proper place for demand, no 249. objection being made. Baldwin v. 27 See cases in notes 8 and 9, supra. Farnsworth, 10 Me. 414. 28 See § 250, ante. 4 be at some reasonable hour; but this proposition is disputed. But the demand, where it is not actually personal, but merely constructively so, is the one that causes the most difficulty. The person making the demand may know or may not know the residence or place of business of the party upon whom a demand is to be made. The most general proposition that may be advanced, assuming the demandant to know the facts, is that the person making the demand, where no place of demand is provided for, may select either the place of business. or the residence, if the maker, drawee or acceptor, as the case may be, has both a residence and a place of business." And a good demand at either place is sufficient; the demandant is not required to resort to the residence if he does not find the party at his place of business, or vice versa. But if the party has a place of business the preferable practice will be to make the demand at that place, whether it be an office or a business house. The demand should be made during business hours if the party be not found there; otherwise a demand there is not good. If business hours are over and the place of business closed, or the party not therein, the alternative remaining is to resort to the resi 4 See § 250, ante. 5 Bateson v. Clark, 37 Mo. 31; Winans v. Davis, 18 N. J. Law, 276; Otsego Co. Bank v. Warren, 18 Barb. 290 (a partnership); Arnold v. Dresser, 90 Mass. 435; Estes v. Tower, 102 Mass. 65; Barnes v. Vaughan, 6 R. I. 259; Burrows v. Hannegan, 1 McLean, 309; Hartford Bank v. Greene, 11 Iowa, 476; People's Nat. Bank v. Luttertoh, 95 N. C. 495; Holtz v. Boppe, 37 N. Y. 634; Adams v, Leland, 30 N. Y. 309; Simmons v. Belt, 35 Mo. 461. 6 At place of business sufficient. Wallace v. Crilley, 46 Wis. 577; Wiseman v. Chiapella, 23 How. 368; Shedd v. Brett, 1 Pick. 413; Baumgardner v. Reeves, 35 Pa. 250; Fields v. Mallet, 10 N. C. 465 (but dence. The preliminary question to be determined in serving at a place of business is whether or no it be the party's place of business. If the place has been his place of business, but is abandoned, the demand should be made at the residence. So it seems to have been held where the makers had failed and an assignee was in possession.10 If the party has led the public to suppose that he has a place of business, that place will be considered his place of business for a demand." A comparison of cases upon the subject of service of notice of non-payment will be found instructive 12 as to determining what is a place of business. If the demand is made at the place of business during business hours, the place of business may be closed. If so, the demand is complete and the paper is dishonored, just as it is dishonored if the residence is closed.13 But in the latter contingency the rule ought to be that if the person has a well-known place of business in the city where he resides, a demand should be made there if the residence is closed. If there be some one in the place of business, if he states that he is the person named his answer may be relied upon. If the person wanted is not there, demand should be made upon the clerk or one apparently in charge, and it will be sufficient. If the place of business is open, but no one there, the author's opinion is that the situation is the same as if the office were closed. Certainly, after waiting a reasonable time, a writ ten demand left there designatiug some place to come and pay ought, in common sense, to be sufficient; but it has been held that a notification to a party to come to a certain 8 See notes 5 and 6, supra. 9 Granite Bank v. Ayres, 16 Pick. 392. Compare Demond v. Burnham, 133 Mass. 339, and Talbot v. Nat. Bank of Com., 129 Mass. 67. 10 Benedict v. Caffe, 5 Duer, 226. 11 McHenry v. Kellar, 6 La. Ann. 326. 12 See SS 274, 280, post. 13 Baumgardner v. Reeves, 35 Pa. 250; Shedd v. Brett, 1 Pick. 413 (for 14 place of business); Wiseman v. Chiapella, 23 How. 368 (for residence). But compare Bank of Red Oak v. Orvis, 42 Iowa, 691; Apperson v. Bynum, 5 Cold. 341. 14 Hunt v. Maybee, 7 N. Y. 266. And for the propriety of making a demand upon the clerk or other person in the office, see § 248, ante, notes 19-24. place and pay a note was not a sufficient demand,1 but it did not appear in that case that any attempt at an actual demand had been made. Certainly the person ought not to be expected to wait an unreasonable length of time until some one came in, and if necessary to wait until business hours were over. Caution probably would dictate a search for the residence of the party. But it is not infrequently the case with men of business in large cities that their residences are many miles away and a demand there would be impracticable. Therefore the rule ought to be that, if a demandant goes to an office or place of business of a party and, finding no one there, leaves a notice in some proper place in the office, as upon the desk of the party, if he can determine it, such a demand is sufficient. It is certainly sufficient in any place where the custom obtains and is so general that every one is supposed to have knowledge of it. But it may be that the person upon whom the demand is to be made has no place of business. In that case his residence must be sought and a demand made there. The law applicable to a demand at the residence is the same for whatever reason the demand is made there, whether it be because. the demandant chooses the residence because he prefers it to the place of business,16 or because it is too late to make demand at the place of business, or because there is no place of business," or because the residence is designated as the place of payment. In this latter case it is to be observed that the designation of the dwelling-house of the party upon whom demand is to be made as the place of payment amounts to nothing more than a giving on the paper of the place of residence. The demand nevertheless can be made at the person's place of business, if he has one.18 The ques 15 Barnes v. Vaughan, 6 R. I. 259. And see Farmers' Bank v. Duvall, 7 Gill & J. 78. Banks are permitted to do this by a custom in New England. Whitwell v. Johnson, 17 Mass. 449. The best commentary upon this rule is the note 6 to this case by the editor of the edition of 1864, Benjamin Rand, Esq. 16 See note 6, ante, as to this right. 17 Bank of Red Oak v. Orvis, 42 Iowa, 691; Apperson v. Bynum, 5. Cold. 341. 18 Frost v. Stokes, 55 N. Y. Super.. tion of residence must be determined preliminarily. A man may be fortunate enough to have two residences, a town house and a country house. If the city house is kept open or has some one in charge competent to receive the demand, such as a servant, or even if it be shut up, the demand made there upon such person is good.19 If the place is closed up and no one there, a search showing due diligence must be made to ascertain the present residence of the person sought.20 If the new place of business or present residence of the party is found to be in another state, demand ought to be made at the former residence or place of business," although this cannot be considered necessary. 23 If the residence is occupied by the party, family or servants, demand may be made there although the person sought is temporarily absent. The time of demand must be within reasonable hours, but what they are has not been accurately determined. If the residence is no longer occupied by him but by some one else, further search must be made for his residence, in accordance with the rules as to reasonable diligence. It is to be noted that in questions of demand, the holder, if he employs an agent, must give the agent all the information which he possesses, for it must be shown not only that the agent exercised due diligence, but that the holder did also.24 But it is a reasonable qualification to this Ct. 76; Miller v. Henner, 3 Mart. (N. S.) 587. The demand may be made at the place of business as well. 19 Stewart v. Eden, 2 Caines, 121 (a case as to notice). See Goodwin v. McCoy, 13 Ala. 271, and Runyon v. Montfort, 44 N. C. 371, which were also cases as to notice. 20 Stayler v. Ball, 24 Md. 183. If known, demand must be there. La. Ins. Co. v. Shamburgh, 2 Mart. (N. S.) 511. 21 Adams v. Leland, 30 N. Y. 309; Central Bank v. Allen, 16 Me. 41. A removal to a new state excuses a demand. Magruder v. Bank of Washington, 9 Wheat. 598; Gist v. Lybrand, 3 Ohio, 307; Wheeler v. Field, 6 Met. 290; Grafton Bank v. Cox, 13 Gray, 503; Sanford v. Norton, 17 Vt. 285; Herrick v. Baldwin, 17 Minn. 209; Foster v. Julien, 24 N. Y. 28. But not if the removal is in the same state. Bigelow v. Keller, 6 La. Ann. 59; Reinke v. Wright, 93 Wis. 368. 22 Levy v. Drew, 14 Ark. 334. See Shamburgh v. Commagere, 10 Mart. (O. S.) 18; Farley v. Hewson, 10 La. Ann. 783. 23 See § 250, ante. 24 Haly v. Brown, 5 Pa. 178. |