John v. City National Bank

57 Ala. 96 | Ala. | 1876

BRICKELL, C. J.

The holder and the indorser of the bill resided in the city of Selma, where the bill was payable. The rule of the law merchant, as it has been invariably recognized in this State, is, that to fix the liability of the indorser, the notice of the dishonor must be personal — that is, given to him in person, or left at his place of business, or at his residence. Notice deposited in the post-office is insufficient, unless the bill is payable at a bank, which by usage has adopted that mode of giving notice—Stephenson v. Primrose, 8 Port. 155; Foster v. McDonald, 3 Ala. 34, (s. c. 5 Ala. 376); Gindrat v. Mechanics’ Bank, 7 Ala. 324; Rives v. Parmley, 18 Ala. 256.

The statute (R. C. § 1850), which authorizes the transmission of notices by mail to the residence, or the post-office nearest the residence of the drawer, maker, or indorser, at the time he becomes a party to the bill, without reference to his place of residence at the time of dishonor, unless he designates the place to which notice shall be addressed, has not changed or modified the rule. The statute applies only to notices which under the law merchant may be transmitted by mail from one post-office to another. Before the statute, when notice of protest or of non-payment was transmissible by mail, the holder was bound to show the notice was sent to the post-office which at the time of dishonor was nearest the residence of the party to be charged, or was then the office at which he was in the habit of receiving his letters. Crawford v. Br. Bank Mobile, 7 Ala. 205; Foard v. Johnson, 2 Ala. 565; Br. Bank Decatur v. Pierce, 3 Ala. 321. Due diligence, and inability to ascertain the proper post-office at the time of dishonor, only, would excuse the failure to transmit notice there. The statute simply converts notice addressed to the residence, or the post-office nearest the residence of the party to be charged, at the time he became a party, into sufficient notice, without regard to his residence or post-office at the time of dishonor. In no other respect does it change or modify the rules of the law merchant, and is by its terms and in its objects confined to notices which under the law merchant are transmissible through the post-office.

The holder in giving notice is bound only to reasonable diligence. Presentment to, and demand of payment from the acceptor, and due notice of dishonor, is the condition precedent on which the liability of the indorser depends. If the holder uses due diligence to give notice of dishonor to the indorser, but is prevented by the act of the indorser, notice is excused. The holder is not in fault; he has done ■ras near what the law requires as he could — and that he has not done more, is the fault of the indorser.—Williams v. U. S. Bank, 2 Pet. 96. When personal notice must be given, if during business hours, on the day of dishonor, or the succeeding day, the holder visits the place of business of ■the indorser to give him notice, and finds him absent, and no one there with whom notice may be left, and the doors - closed, he is excused from giving notice. The burthen of proof rests on the holder to show notice, or an excuse for not giving it. If the absence of the indorser from his place of business when it was visited for the purpose of giving him notice, is relied on as an excuse, it must be shown the absence was during hours of business. — Stephenson v. Primrose, 8 Port. 155. It is only during such hours it is reasonable to expect to find him there, or any one with whom notice could be left for him. The evidence is very indefinite as to the hour of the day at which the notary visited the office of the indorser. No note of the time seems to have been made; it was in the afternoon of the day of dishonor, ■and before sundown, according to the recollection of the notary. What were business hours in Selma is not shown; and for aught that appears, the visit may have been at an hour when the notary could not justly and reasonably expect to find the indorser there. The visit may have been made to that office with the bare hope of finding the indorser, and relieving himself from further trouble in giving notice. The residence of the indorser was known, and he was not sought there. Notice on the succeeding day would have been sufficient, yet it was not given; but, not finding him at his place of business in the afternoon, and it may be at ■an unreasonable hour, notice deposited in the post-office— the mode of notice the least troublesome to the notary — is the resort. When the facts are ascertained, the sufficiency - of notice, or of the excuse for not giving it, is a question of law. The Circuit Court erred in holding there was due notice of the dishonor given by the deposit of notice in the post-office; or, that the absence of the indorser from his place of business, as it is shown by the evidence, was an . excuse for the failure to give notice.

The second charge given by the court is clearly erroneous. Notice should have been given on the day of dishonor, or-on the succeeding day, to fix the liability of the indorser. If not then given, and facts do not then exist which excuse it, the indorser is discharged. No act of the holder subsequently can fix on him a liability. A demand of payment within three days after dishonor, cannot operate as the notice which should have been given, or cure the laches of the holder.

The other questions which are presented, it is not probable will arise on the same state of facts on another trial. It is sufficient to say in reference to them, that the notices of dishonor must inform the indorser of the fact of dishonor and that payment is expected of him. A notice which informs the indorser of the instrument, and of its dishonor,. and that he is looked to for payment, is sufficient.

The judgment is reversed, and the cause remanded.