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Such notice would, more clearly still, be good if the senator had given up his residence in the State he represented, and had left no one there to attend to his business.? Perhaps the case of a member of the Legislature at the Capitol, away from home, would fall within the principle governing the case of the example; but cases of the kind have been thought to go to the verge of the law merchant. The Statute has put the subject upon a better footing by providing that if the party to be notified is sojourning in another place, notice may be sent to the place where he is sojourning.' 3
In regard to seeking information, inquiry should be made of some one from whom, or through some source of information Making in- where, trustworthy information will be apt to be quiry.
given. It is usual and proper for the notifying party to make inquiry of some other party to the paper, e. g., a later indorser, in regard to the place of residence of indorsers; and such course will be especially proper, if not necessary, where the notifying party has reason to think that any party to the paper knows of such place of residence, assuming, of course, that the party having the knowledge is within reasonable reach. And if a notary is employed, the holder should give him the benefit of any information he has..
It is not enough, it seems, to make inquiry for an indorser's place of residence at the post-office, where the indorser resides in a large city, unless indeed he has lately been employed in, or connected with, the post-office. The proper way is to consult some good city directory, and in case of removal, then at the indorser's last place of business or of residence. Or, if in a case of the kind the indorser's name does not appear in the directory, inquiry may be made of some other party, as the maker or acceptor; and if information is given, notice may be sent
1 Tunstall v. Walker, 2 Smedes & M. 638.
Walker v. Stetson, 14 Ohio St. 89; Cases, 195. 8 N. I. L. $ 115, 3, 4 Wolf v. Burgess, 59 Mo. 583 ; Gilchrist v. Donnell, 53 Mo. 591. $ Edwards v. Thomas, 66 Mo. 468. 6 Miller v. Fariners' Bank, 30 Md. 392.
accordingly, whether the information given was right or not." Of course, inquiry may be made of relatives of the indorser.? If on going to the indorser's house to give him notice, the house is found closed and unoccupied, inquiry may and perhaps should be made at the next door, if there be a house near.3
Inquiry should be pursued for the time until some satisfactory, that is, apparently trustworthy, answer is given, or until it is reasonably clear that nothing useful can be found out. When, however, the apparently trustworthy information is received, inquiry may stop, and notice may be sent accordingly; and the notice will be good whether the information was correct or not. For example: The defendant is indorser of a bill of exchange held by the plaintiff. On discounting the bill, the plaintiff inquires of the drawer where the defendant resides, and receives an answer, according to which he sends notice of dishonor seasonably to the defendant, nothing having occurred to lead him to doubt the correctness of the information. The notice is good, though the information is incorrect.5
The place of date of a bill is presumptively the place of residence of the drawer, and so would be the place of date of an indorsement, if added, in regard to the indorser's
Place of date. residence; and there is good authority for the statement that the notifying party may rely upon such date if he has no reason to doubt whether the drawer or indorser lives at the particular place. For example: The defendant is drawer, and the plaintiff holder, of a bill of exchange dated at A. Notice of dishonor is directed to the defendant, in due time, at A, though A is not his place of residence, and though the plaintiff might have learned on inquiry where the defendant resides. The notice is not received. The defendant's liability is deemed duly fixed.“
There is also equally good authority that the notice would not be sufficient in such a case, in the absence of evidence that the plaintiff had made due inquiry for the defendant's place of residence. But it is to be observed that the defendant, by dating the bill or indorsement as he has done, has himself misled the plaintiff; can the defendant afterwards object to his own act? Clearly, however, if the plaintiff had reason to know that the place of date was not the defendant's place of residence, he cannot safely treat the place of date as the proper address.' And of course the place of date of a bill, note, or cheque has nothing to do with the place of address of an indorser not being also drawer or maker.3
i Gawtry v. Doane, 51 N. Y. 84.
* Saco Bank v. Sanborn, 63 Maine, 340 ; Bank of Utica v. Bender, 21 Wend. 643.
6 Bank of Utica v. Bender, supra. 6 Burmester v. Barron, 17 Q. B. 828; Pierce v. Struthers, 27 Penn. St. 249.
DILIGENCE The whole matter of the several steps required to fix the liability of an indorser may be summed up, as has already been stated or intimated more than once, by the statement that the law merchant requires reasonable diligence, and that only.' What constitutes reasonable diligence is fixed, presumptively but not absolutely, in certain cases, as in the matter of time of presentment and time of notice of dishonor; in other cases it remains a question of fact upon all the circumstances of the
However, when the facts are all found or admitted, the court will ordinarily determine, whatever the case, whether they show a compliance with the rule of reasonable diligence.5
1 Lowery v. Scott, 24 Wend. 358 ; Spencer v. Bank of Salina, 3 Hill, 520 ; Carroll v. Upton, 3 Comst. 272 ; Taylor v. Snyder, 3 Denio, 145; Sprague 1. Tyson, 44 Ala. 338; Tyson v. Oliver, 43 Ala. 458; Barnwell v. Mitchell, 3 Conn. 101.
2 Pierce v. Struthers, 27 Penn. St. 249. See further, Mason v. Pritchard, 9 Heisk. 793.
3 Lawrence v. Miller, 16 N. Y. 235, 240; Spencer v. Bank of Salina, 3 Hill, 520.
4 N. I. L. $ 119 : Notice of dishonor is dispensed with when, after the exercise of reasonable diligence, it cannot be given to or does not reach the parties sought to be charged.'
6 Bank of Utica v. Bender, 21 Wend. 643 ; Cases, 191 ; Carroll v. Upton, 3 Comst. 272 ; Walker v. Stetson, 14 Ohio St. 89; Cases, 195; Bank of Columbia v. Lawrence, 1 Peters, 578 ; Wheeler v. Field, 6 Met. 290; Peters v. Hobbs, 25 Ark. 67 ; Farmers' Bank v. Gunnell, 26 Gratt. 131 ; Tardy v. Boyd, id. 631.
Reasonable diligence having been exercised, the notifying party may, it seems, rest in security ; it matters not now what further information may come to hand; even if it show that the information acted upon was false and the true state of things is now made known, it may be disregarded. So it has been held by high authority, though the contrary has been laid down, but in ignorance apparently of the former decision.”
What has been said in the foregoing sections is said upon the assumption that no excuse for omitting the step or steps has arisen.
1 Lambert v. Ghiselin, 9 How. 552. 9 Beale o. Parrish, 20 N. Y. 7.
INDORSER'S CONTRACT CONTINUED: EXCUSE OF
$ 1. TEMPORARY Excuse.
HERETOFORE it has been assumed that no question of permanent excuse in regard to the steps for fixing the indorser's
liability was involved, though mere delays and the The rule stated.
reasons therefor, or temporary excuses, have been under consideration from time to time. The law in regard to temporary excuses may be thus summed up: Whenever it has become impracticable, without fault of the holder, to take the steps at the time required, the holder is excused from doing so until a reasonable time after it becomes practicable to take the steps. Of course if the indorser himself has caused the delay, as by indorsing just before or at maturity, at a place too distant for presentment thereupon, at maturity, the indorser will not be permitted to object to the delay.
Now, however, we encounter cases in which one or more of the steps was omitted altogether, and the plaintiff's contention is that the taking of the steps at any time was unnecessary, the law merchant finding in the facts a sufficient excuse for the omission. What facts then excuse, not some delay, but permanent omission, the indorser being held, notwithstanding, as if all the steps presumptively required had been taken ? Waiver and facts not of waiver may constitute such excuse.
1 N. I. L. 88 88, 120. See Windham Bank v. Norton, 22 Conn. 213; Cases, 132; Farmers' Bank v. Gunnell, 26 Gratt. 131 ; Tardy v. Boyd, id. 631 ; Lane v. Bank of West Tennessee, 9 Heisk. 419; Dunbar v. Tyler, 44 Miss. 1; Durden v. Smith, id. 548 ; Bank of Old Dominion v. McVeigh, 26 Gratt. 785, 805, 806.