Linville v. Welch

29 Mo. 203 | Mo. | 1859

Napton, Judge,

delivered the opinion of the court.

The instructions given by the court in this case were erroneous. What is due diligence in giving notice of dishonor of a bill of exchange is a question of law, when the facts are agreed on ; and when the facts are disputed, the court should give hypothetical instructions, leaving the facts to be determined by the jury. (1 Peters, 583.)

Upon the facts disclosed in the bill of exceptions in this case, it is impossible for this court to pass upon the sufficiency of the notices attempted to be given by mail. So far as the evidence goes, it seems clear that notices put in the post-office at St. Louis, directed to the defendant at Cincinnati and at this place, were insufficient. There is no direct evidence to show where the defendant resided, or where his place of business was, but it may be inferred from the evidence that he lived in Edina. If so; and that fact was known to the plaintiffs or their agent here, notices directed to the defendant at Cincinnati or St. Louis were of course no notice at all. If the residence of the defendant was unknown to the plaintiffs or their agent here, inquiry should have been made to ascertain his true domicil or place of business. (Story on Bills, § 299.)

It appears to be the prevalent and settled opinion now, that a bill of exchange drawn in one state of the United States upon a person in another is to be treated as a foreign bill of exchange, upon the same principle, we may suppose, that the courts in England held a bill drawn in Scotland or Ireland upon a person in London to be a foreign bill, after the Union; (Buckner v. Findlay & Van Seer, 2 Peters, 589; Mahony v. Ashlin, 2 Barn. & Adolph. 589; 3 Kent Comm. 94;) and in all cases of foreign bills of exchange a protest is necessary. . (Story, § 277.) But it is not necessary that the notice of the dishonor should be accompanied by a copy of the protest; it is sufficient for the notice to state that the bill has been protested, leaving the proof to be made at the trial, if the case is contested. (Story, § 302.) And the notice may be a verbal one made to the parties in person. (Story, § 300.)

In relation to the presentment to Loker, Renick & Co., the law requires this to be made in reasonable time, and what that will be must depend upon the circumstances of the case. That the presentation made in this case by Matthews, on the 13th December, was not within reasonable time, would seem to follow from the fact that a previous presentation had been made on the 17th November.

Judgment reversed and the case remanded.

The other judges concur.