16 N.Y. 235 | NY | 1857
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *237 In order to charge the indorser of commercial paper, notice of its dishonor, in cases where a notice is necessary, must be given by the holder thereof, or by some one of the parties thereto. Notice by a stranger is not sufficient. (Chitty on Bills, 8thAm. from 8th London ed., 526 to 529; Story on PromissoryNotes, §§ 301 to 307; Chanoine *238 v. Fowler, 3 Wend., 173; Sewall v. Russell, id., 276.) An agent of the holder or other party may give the notice; but in doing so he represents and acts on behalf of his principal, and that, too, although he may be a notary and act in his official character. If the residence of the indorser is known, or by the exercise of due diligence can be ascertained, he is entitled to notice.
In this case, the referee has found that the notary into whose hands the note in suit was placed, with directions to demand payment of the maker and give the notice, did not know the residence of the indorser, and, so far as he was concerned, and as between him and his principal, had made all necessary inquiries to ascertain it. But it was the holder of whom the law requires diligence; and, if he knew the residence of the indorser, the latter was entitled to notice. The referee has not found, and there is nothing in the case showing affirmatively, that the residence of the indorser was in fact known to the plaintiff, the holder of the note; and it is claimed by his counsel that there is no presumption that he had such knowledge. As there is no other indorser of the note than Miller, the plaintiff must have been his immediate indorsee. The complaint so avers, and the legal presumption is that the paper was transferred by the defendant to the plaintiff; and if such was the fact he must have known the defendant, and it is to be inferred that he knew the defendant's place of residence. If, when he purchased the note, he did not know, he should then have made the inquiry, and it must be presumed that he did so. If the defendant was an accommodation indorser, and the note was in fact transferred by the maker to the plaintiff, he then should have inquired of the maker as to the residence of the indorser. InAnderson v. Drake (14 John., 114), Chief Justice THOMPSON, in speaking of the diligence required of the holder of commercial paper to charge the indorser, says: "Whoever takes such a note is presumed to have made inquiry for the residence of the maker, in order to know *239 where to demand payment, and to assume upon himself all the inconvenience of making such demand and the risk of the maker's removing to any other place before the note falls due." The same diligence is required of the holder in finding the maker of paper not payable at any particular place, to make demand of payment, as in finding the indorser, to give notice of demand and non-payment, and no greater or different. Consequently, the remarks made by the distinguished chief justice are strictly applicable to this case. I think the legal presumption is that the plaintiff did know the residence of the indorser; and, if he did, it was clearly his duty to impart the information to the notary. He was guilty of laches in not doing so.
But it is claimed that it was impossible for the plaintiff to show his want of knowledge; that he could not prove a negative. The general rule of law is, that notice must be given to the indorser. Cases where it need not be given form exceptions to the general rule, and the plaintiff was bound to show that his case came within some of the exceptions, in order to excuse the want of notice. The evidence thereof was within his power. As above suggested, he should have imparted to the notary what information he had on the subject. If he did not know the indorser's residence, he should have instructed the notary where to make inquiries, and who to call upon for information, and especially should have directed him to the maker of the note, and informed him where the maker could be found. It would have been competent, upon the trial, to prove the instructions thus given as a part of the res gestæ, as tending to show what degree of diligence was used, and thus prima facie evidence of the plaintiff's knowledge on the subject would have been furnished.
It appears, affirmatively, that no instructions were given by the plaintiff to the notary relative to service of notice, or information communicated to enable him to give the notice, as the referee has found that the latter called at the place of *240 business of the former for the purpose of obtaining information, and did not succeed in finding him.
But upon the supposition that the residence of the defendant was unknown to the plaintiff, inquiry should have been made of the makers. Due diligence required that this should be done. (Chitty on Bills, 8th Am. from 8th London ed., 525; Bankof Utica v. Davidson, 5 Wend., 587; Same v. Bender, 21id., 643; Same v. De Mott, 13 John., 432; Catskill Bank v. Stall, 15 Wend., 364; Lowry v. Scott, 24 id., 358;Bayley on Bills, 280-283, ch. 7, § 2, 5th ed.) It does not appear where the maker resided; but the fact that the note was dated and payable in the city of New-York is some evidence that he resided there, although no evidence of the residence of the indorser. (Lowry v. Scott, 24 Wend., 358; Spencer v.Bank of Salina, 3 Hill, 520.)
It is not to be supposed that the plaintiff took the note without knowing anything of either of the parties thereto.
I think the judgment of the Supreme Court should be affirmed.
Concurrence Opinion
The coincidence that a person of the same name with this indorser resided in the city of New-York was calculated to mislead the notary, and it goes far to exonerate him from moral blame. It was, however, no fault in the defendant, the indorser. There is no evidence that it was known to him, and, if it had been, it is not easy to see how he could have remedied it. He could, it is true, have added his residence to his name on the back of the note, but he was not obliged to do so; and if the person and place of abode were known to the plaintiff, his immediate indorsee, as in the absence of proof it is presumed to have been, he might safely rely upon having the notice properly sent, though he took no special means to prevent a mistake. The fact that the note was dated in New-York was slight evidence that the maker resided there, but none that it was *241 the residence of the indorser. (Spencer v. The Bank ofSalina, 3 Hill, 520.)
In the currency which the necessities of business and the policy of the law give to bills and notes, they frequently come to the hands of persons who are unacquainted with the prior parties, with whom they have had no transaction. In such a case the holder is not charged with knowledge of their residence, and is not bound to ascertain it at his peril. It is sufficient if he make diligent inquiry in good faith, and send the notice accordingly. There may be cases where the holder does not know the residence of his immediate indorser, and, where this is shown, due inquiries may excuse a notice. Baldwin v.Richardson (1 Barn. Cress., 245) was such a case. But this defendant dealt immediately with the plaintiff, and in the natural course of such transactions they would know each other. The plaintiff does not give any information to the notary, who goes to work in the dark, and finding in the New-York directory the name of John B. Miller, puts the notice under the door of his office; the defendant, in the mean time, being openly and notoriously at Williamsburgh, and, for aught that is shown, with the full knowledge of the plaintiff. This was not, I think, a case for the application of the doctrine of diligence. That is allowed to supply the place of a notice correctly sent, only from necessity. Where the holder knows the party to be charged, and his residence, no diligence is required, and any amount of that virtue will not answer as a substitute for a notice.
But if it were a case for the exercise of diligence, an inquiry should have been made of some one who knew the defendant, or it should have been proved that no person acquainted with him could be found. The fact that the plaintiff was absent from his place of business, for the moment, did not dispense with an inquiry from him. It does not appear that the bank officer of whom the notary inquired knew the defendant or had ever heard of him. He *242 knew, from looking at the directory or otherwise, that a certain John B. Miller had an office at No. 2 Hanover-square. Both thought this was the man they were looking for, but that was an error, which, though it may excuse the notary, does not charge the defendant.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed.