First National Bank v. Wood

51 Vt. 471 | Vt. | 1879

The opinion of the court was delivered by-

Ross, J.

The only question made as to the liability of the defendant .on the facts reported, is in regard to the sufficiency of the notice to'charge him as an indorser of a negotiable promissory note. When the first transactions out of which the note in suit had its origin transpired, the defendant resided at East Dorset, Yt. When the note in suit was given he had changed his residence, unbeknown to the plaintiff, to Concord, Mass. On the day the note matured, the plaintiff mailed to the defendant, addressed to East Dorset, a notice of the presentation of the note to the maker for payments, its non-payment and protest, which arrived at East Dorset that evening, and was forwarded by the post-master, by the next day’s mail, to the defendant at Concord, Mass., at which place the defendant received it by due course of mail. The plaintiff, by the law merchant, had until the day following the day on which the note fell due, to mail notice of its presentation, non-payment and protest, to the defendant at Concord, Mass. By so doing he would have exercised such diligence as the law demands, and have fixed the liability of the defendant as indorser, although the defendant never received the notice. The defendant, having actually received the notice through the mail as early as he would if the plaintiff, in the exercise of due diligence, had mailed it to him at North Bennington on the day following the maturity of the note, addressed to Concord, Mass., has not been prejudiced, nor put to a disadvantage in pursuing the maker of the note, from the fact that the plaintiff addressed the notice to East Dorset instead of Concord, Mass. If the notice had never in fact reached the defendant, or if it had not seasonably reached him, it is probable that the failure of the plaintiff to ascertain the defendant’s residence at the time it discounted the note, and its addressing the notice to him at East Dorset, showed such a lack of diligence as would have discharged the defendant. So, too, where the law requires the notice to be delivered to the indorser at his residence or place of business, and there is a misdelivery of the notice through lack of diligence by the holder in ascertaining the proper place of delivery, the indorser is discharged. But if the indorser receive the notice seasonably, though misdelivered through lack of diligence, his liability remains. The holder of the note may fix the liability of the indorser by showing that he used due diligence to give notice, although notice never in fact reached the indorser, or by showing that notice was in fact received by the indorser in due season. Bank of United States v. Corcoran, 2 Pet. 121; Dickens v. Beal, 10 Pet. 572; Bradley v. Davis, 26 Me. 45; Story Prom. Notes, ss. 322, 347; Parsons Notes & Bills, 483; Cabot Bank v. Warner, 10 Allen, 522; Manchester Bank v. Fellows, 8 Post. 302. The purpose of the law in requiring notice to be given is, that the indorser may he informed of the presentation and non-payment of the note, and that the holder is looking to him for payment, that he may be able to secure himself against those who may be liable over to him. All the rules requiring the holder to use diligence to ascertain the residence of the indorser, and to lea've notice at his place of business or residence, when they reside in the same town, or to mail notice as soon as the day following the day of the maturity of the note, addressed to him at his place of residence, when they reside in different towns, are made and enforced that the indorser may be informed that his liability on the note has not been discharged by the party whose duty it was to pay the note at maturity. When, therefore, the indorser in fact receives notice in due season that the note has been duly presented for payment and protested, the purpose of the law has been accomplished, although the holder of the note has not complied with one of the established rules in regard to the use of diligence in giving notice.

Judgment affirmed.