Bank of Utica v. Davidson

5 Wend. 587 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

The only question in this case is whether sufficient notice of the dishonor of the note on which the suit is brought was given to the defendant to charge him as endorser, which resolves itself into the inquiry whether due diligence on the part of the plaintiff was shewn to ascertain the residence of the defendant.

If the holder of a note is ignorant of the place where the endorser resides, and cannot ascertain it after diligent inquiry, notice sent to the place where the note bears dale will be sufficient. If no place appears on the face of the note, notice must be sent to the place where, according to the best information to be obtained, the endorser will most probably be found. In Chapman v. Lipscombe & Powell, 1 Johns. R. 294, the bill was dated at New-York and was drawn on a house in that city and accepted. The drawers in fact resided at Petersburgh in Virginia. The bill not having been paid at muturily, inquiries were made at the banks and elsewhere after the defendants, and the information received was that they resided at Norfolk. The notary put two notices in the post-office, one directed to the defendants at New-York, and the other directed to them at Norfolk in Virginia. This was held sufficient. In The Bank of Utica v. Demott, 13 Johns. R. 432, it did not appear at what place the note was made; the clerk of the bank stated, that from the best information he could get, he supposed the defendant resided at Canandaigua, and accordingly directed his notice there; that he inquired of th& cashier and some of the directors as to the defendant’s residence. The defendant in fact resided ai O.nd, in Seneca county, and had resided there for 10 years. The maker also lived there when the note was given. The court observe, in this case, that ‘■with ordinary diligence the place of the defendant’s abode might have been ascertained. He had a permanent residence for 10 years at Ovid, and the inquiry respecting him was very limited.” I infer from these observations that no inquiry was made except of the officers of the bank, and that when the notary said that from the best information he could get he believed the defendant resided at Canandaigua, he was understood to have sought information from no other quarter. It is upon this construction only that the observation of the court can be justified: that with ordinary diligence the defendant’s residence might have been ascertained. If the inquiry were confined to the officers of the bank, under such circumstances it was a clear case of laches. 2 Campb. 461, 12 East, 433. 3 Esp. 240. 2 Maule & Sel. 49. Chitty on Bills, 275, notes.

In the case now before us, the individual of whom the inquiry was made stood ostensibly in a relation to the parties to the note, which authorized a belief that he was acquainted with their residence, and justified the clerk of the bank in relying upon his information. He was the agent of the maker in presenting the note to the bank. I do not mean to say that he was an agent in any sense that would make his declarations or representations binding upon any of the parlies to the note ; but the fact of his being the bearer of the note to the bank, was presumptive evidence of some sort of intercourse or connection with the parties which would enable him to answer the inquiry as to their residence. There is no evidence in the case that the defendant was in the habit of doing business at Ulica; that he knew or was known to an individual there. There is nothing from which it can be inferred that more accurate information might have been obtained. It is to be remarked, too, that the information received coincided with the presumption arising from the face of the note ; it was dated at Bainbridge. Besides, the defendant had in fact resided at Bainbridge, until within a few weeks preceding that time. He had not as in the case of The Bank of Utica v. Demott, had a permanent residence for yearg a[ another place; his removal was so recent as to render it improbable that it would be known at a place so remote as Utica at the time when the note fell due. On the whole I am inclined to think that due diligence was shown, and that the notice was therefore sufficient.

I do not understand any objection to be taken on the ground that the notice was directed to Bainbrldge instead of “South Bainbridge.” It is all one town, and it does not appear that it has more than one post office. The omission of the particular part of the town was therefore not material.

Judgment for plaintiffs.