John v. City National Bank

62 Ala. 529 | Ala. | 1878

STONE, J.

When this case came before this court at a former term, the record failed to show that the notary’s visit to defendant’s office was within business hours. — See John v. City National Bank of Selma, 57 Ala. 96. In that case the Circuit Court had instructed the jury, as matter of law, that the proof of notice was sufficient. The proof made in that case was, that before sunset on the day on which protest was made, the notary in person carried a written notice of protest to defendant’s law office; that he found no one there, and that the law office was closed and locked. Thereupon, without further search for Mr. John, he deposited the notice in the postoffice addressed to Mr. John. This court, after stating that the burthen of proof rested on the holder to show notice, or an excuse for ’not giving it, added : “ 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. 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 sundoion, 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 have been 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 businoss, as it is shown by the evidence, was an excuse for the failure to give notice.” The substance of what was decided in that case is, that the holder and indorser being residents of the same place — the city in which the protest was made — personal notice of the dishonor was required; and under the evidence disclosed in that record, no sufficient excuse was shown' why such personal notice was not given. In holding that notice deposited in the post office was insufficient in that case, this court simply followed many former rulings. Stevenson v. Primrose, 8 Por. 155; Gindrat v. Mechanics Bank,, 7 Ala. 324; Greene v. Farley, 20 Ala. 322. See, also, Tyson v. Oliver, 43 Ala. 455 ; Phillipe v. Harberlee, 45 Ala. 597. So, in the second branch of the proposition, this court only followed Stevenson v. Primrose, supra. In that case this court said, ‘‘to make the excuse available, it should have been shown, not only that the witness called at the plaintiff’s place of business, but it should appear further that the visit was made at a seasonable time — viz: within the hours of business.” True, in the former opinion in this case, mention is made of the fact that the notary did not call at the residence of Mr. John, and that he did not renew the effort on the next day to find him. The opinion, however, does not declare on what ground the diligence is adjudged insufficient. The failure to show that the call was made within business hours, was, as we have seen, fatal to the legal sufficiency of the excuse.

The proof in the present record, is different from that in the former one. Witnesses testified, pro and con, on the question, what were business hours in Selma; and the question, whether the witness’ visit was within business hours, was fairly submitted to the jury in the charge of the court. The verdict proves this issue was found in favor of the plaintiff. It is, then, an established fact in this record that the notary, on the very day on which the bill was dishonored, and within business hours, called at the office of the indorser to give him notice of the dishonor, and found the office closed and locked, and no one there with whom notice could be left. The exceptions to the charges raise the question, was this sufficient, or should the notary have visited the indorser’s residence, or repeated the call the next day ? In the case of Crosse v. Smith, 1 Maule & Sel. 445, notice was sent by a clerk, who, between 10 and 11 o’clock, A. M., knocked at the counting-house door of the persons sought to be charged, and found nobody there. Lord Ellenborough, pronouncing on the sufficiency of this excuse, said: “ That brings it to the question, whether sending the bill by a clerk, after 10 o’clock, and knocking and waiting at the counting-house ddor, was sufficient notice in point of law; and we think that it was.” He cited and approved Lord Eldon’s similar ruling in the case of Goldsmith v. Bland, where “the only notice of the dishonor of a bill was by a clerk of the indorsee, who went to the counting-house of the indorser, found the counting-house shut up and no person there; saw a servant girl, who said nobody was in the way, and he then returned without leaving any message.” In the case of Allen v. Edmonson, 2 Car, & Kir. 547, Baron Rolfe ruled that if “a party send a messenger once, in due time and during the hours of business, to the place of business of another party who is entitled to have notice of the dishonor of a bill, for the purpose of giving such notice, and there be no one there to receive it, that is equivalent to verbal notice.” Of similar import is the case of Lord v. Appleton, 15 Me. 270. In Chit, on Bills, marg, 453, it is said: “ Sending a verbal notice to a merchant’s counting-house is sufficient, and if no person be there in the ordinary hours of business, it is not necessary to leave or send a written one, nor is it necessary to make inquiries after the party so as to give him notice elsewhere.” 'And, on page 471, the same author says : “ If the drawer has a counting-house where he transacts business, and at which the bill was addressed, it suffices to apply there for the purpose of giving notice, without attempting to give or leave notice at the residence of the drawer.” To the same effect is Bayley on Bills, 273; Byles on Bills, marg. 280; Story on Bills, § 300; Thompson on Bills, 509; Daniel on Neg. Insts. § 1016; 1 Parsons on Notes and Bills, 487. The last two elementary authors, after stating the principle as' above, express some doubt of the safety of the, practice, but they cite no authorities in support of their doubts. Edwards, in his work on bills and notes, is not definite on this question. — See page 456.

’ On a question of commercial law, such as this, it is highly important that the courts of different States and governments, having commercial intercourse, should be harmonious in their rulings. We find the authorities as we have stated them above, and we do not feel at liberty to depart from them. The Circuit Court did not err in the charges given, nor in the charge refused.

It was not necessary to give notice to produce the notice sent by mail, as a preliminary to making proof of its contents. — Sharswood’s Byles on Bills, marg. 303, and authorities on the brief of counsel.

. Protest of bill for non-payment is a solemn official act of a sworn officer, charged with the duty. True, the protest is not the dishonor ; it is the evidence of it, Notice of the dishonor, consists in “notice of tbe facts showing, or fairly implying that tbe drawee bas refused to accept or pay tbe bill when presented for that purpose at the right time and place, or other acts done which are deemed equivalent.” Edwards on Bills and Notes, 470; Code of 1876, § 1336.

Tbe judgment of tbe Circuit Court is affirmed.