26 Me. 45 | Me. | 1846
The opinion of the Court was drawn up by
— The parties have agreed, that the Court instead of the jury, shall ascertain the facts legally proved in this case, and decide whether, according to the rules of law, the plaintiff is entitled to recover. This depends upon the question, whether the defendant as indorser of a note, was duly notified of its non-payment by the maker. The defendant’s place of abode w'as at Bangor in this State. The note was payable at a bank in Boston; and was put into the hands of Charles Hayward, who, according to his testimony, had been a Notary Public in that city for twenty-four years, in order that he might make a demand of payment at said Bank, and notify the indorser, the defendant, in case of non-payment. By his protest it appears that he demanded payment at said Bank without effect, and in due season, and he therein says, that he duly notified the indorser of the non-payment.
We do not think it essential, that it should be stated in the notice, who was the owner of the note, or at whose request the notice was given. The late C. J. Parker, in Shed v. Brett, 1 Pick. 401, in delivering the opinion of the Court, in reference to an objection to a notice for the want of these particulars, says, that there was some show of reason in the objection; but that the Court would require some positive authority in support of it before they would, by listening to it, sanction the mischiefs which would be likely to ensue from sustaining it. And Mr. Justice Story, in delivering the opinion of the Court, in Mills v. The Bank of the U. S. 11 Wheaton, 431, says, “ it is of no consequence to the indorser who is the holder, as he is equally bound by the notice, whomsoever he may be, and it is time enough for him to ascertain the true title of the holder when he is called upon for payment.” And again, in the same case, that “ it is sufficient that it (the notice) states the fact of the non-payment of the note.”
The law merchant, as well as the statute before cited, recognizes the notary, when a note or bill is left with him for the purpose of demanding payment, as an authorized agent to give notice of dishonor to the parties to be rendered liable thereon. Bank of Utica v. Smith, 18 Johns. 230; Shed v. Brett, above cited; Warren v. Gilman, 17 Maine R. 360. When a notice is signed, therefore, by a notary public, he is to be presumed to be duly authorized by the holder, whoever he may be.
But it is contended, if the notice was left at the Tremont House, as stated by the notary, it cannot avail the plaintiff, because it is admitted, that the defendant’s place of dwelling was in Bangor, and the text writers upon bills of exchange and promissory notes are quoted, as laying down the law, that if the person entitled to notice does not reside in or near the same town or city, the notice may be sent by mail to the postoffice,
We must now examine the evidence, and see how cogent its tendency is to prove that the defendant actually received the notice in question. The notary testifies, that he left it with the bar keeper of the Tremont House for the defendant, on the evening of the day on which demand of payment was, made; and the landlord, and one of his bar keepers testify, that great care was taken that letters so left should be duly received ; that they were at first dropped into an urn standing in the bar, and from thence taken by the persons to whom they were directed, or in the course of an hour or two sent to their respective rooms. Tf then the defendant was a lodger there, at that time, it can scarcely admit of a doubt that he must have received the notice. Sir. C. J. Shaw, in Dana v. Kimball, 19 Pick. 112, in reference to a letter left in a similar manner, remarked, that “ the evidence that the letter left at the Tremont House, and addressed to Kimball, actually reached him, is of the same nature as a similar presumption, arising from putting a letter, so addressed, into the posloffiice, and may even be considered as considerably stronger, inasmuch as there would be less probability of a failure.”
That house was a place of great notoriety, and, according to the number of servants kept at it, as stated in the evidence, of great resort; to manage and conduct which, great exactness of method must have been requisite.
But the defect in the proof we have just been considering, seems to be obviated by the testimony of Daniel Leverett. He appears to have been a witness in the trial; and it appears also that the books of the Tremont House, which were produced at the trial, so far as the defendant was concerned, were kept by him, and in his handwriting, He, therefore, may well be allowed to refresh his recollection by a recurrence to them, and to state what appears therein to be true. He states, that he, at the time, was a bar keeper at that House, during the month of May, 1837 ; and on the twenty-third day of that month, the day on which the notice is proved to have been left at the bar there, he charged the defendant with a bill for washing clothes, and also for a bottle of wine furnished him while dining; that on the twenty-fifth of the same month
Defendant defaulted.