Pier v. Heinrichshoffen

67 Mo. 163 | Mo. | 1877

Houoh, J.

This was an action brought by the plaintiffs, as holders of a negotiable promissory note, against the defendants, as indorsers thereof. The questions presented for determination are, whether the plaintiffs used due diligence in making demand of payment, and gave the requisite notice of non-payment to the defendants. The facts are as follows: The note in question matured oif the 4th day of July, 1861, and was payable at the banking house of E. & G-. Willins, in the city of St. Paul, Minnesota. Some time in April, 1861, the plaintiffs delivered the same to the bank of Cooperstown, at Cooperstown, New York, for collection. At that time a letter, in due course of mail, would reach St. Paul from Cooperstown, in about six days. The cashier of the bank of Cooperstown sent the note by mail to its regular correspondent, the Bank of St. Paul, in the city of St. Paul, for collection, in ample time, as the cashier stated, for it to reach its destination by ordinary course of mail, before the maturity of the note. "When the letter reaced St. Paul, the Bank of St. Paul had made an assignment, and the envelope having printed on it the words “Erom the Bank of Cooperstown,” the postmaster at once returned it to the Bank of Cooperstown, with the indorsement “ hank failed.” The letter was received by the Cooperstown Bank in the original envelope, unopened, on the 9th day of July, 1861, and on the same day the note was returned by mail to St. Paul in a letter directed to E. & G. "Willins, who caused it to be presented and protested on the 15th day of July, 1861, the day on which it was received.

1. PROMISSORY NOTES: demand of payment; diligence: holder not prejudiced by mistake of post-master. The 'defendants contend that there was a want of diligence in not sending the note in time to guard against such contingencies as the evidence dicloses, and that the action of the postmaster in the . . . , « ,n « promises, is no sufficient excuse tor the tail-ure to present for payment on the day of the maturity of the note. Professor Parsons, in his treatise on Notes and Bills, says : “ Ordinarily any failure to present a note at the proper time, by reason of the negligence of an agent, would discharge an indorser, but where the holder makes use of the public mail for the purpose of transmitting the note to the proper place in season to have a legal demand made, and without any negligence on his part, we should say that he would not lose his remedy on an indorser, if through any accident or disorder, or the negligence or mistake of the postoffice clerks, the note does not reach the destined place in season to make demand on the very day of maturity.” Yol. 1, p. 461. In support of his text he cites the ease of Windham Bank v. Norton, 22 Conn. 213, the leading features of which bear such a striking resemblance to the case at bar, that we think it proper to present them. The draft in that case was drawn upon and accepted by Mansfield, Hall & Stone, of Philadelphia, payable at the Farmers’ and Mechanics’ Bank, in said city, on the 2d day of June, 1849, and was indorsed by the defendants to the plaintiffs in the month of February, 1849. During the same month the bill was- indorsed and delivered to the Ohio Life and Trust Co., a banking corporation, in the city of New York, for collection. At that time there were two mails per day from New York to Philadelphia; one leaving at 9 A. m. and one at 4 p. m., both of which were due at Philadelphia five hours after their departure. The Farmers’ and Mechanics’ Bank was the Philadelphia correspondent of the Ohio Life and Trust Co. On the morning of June 1st, the cashier of the Ohio Life and Trust Co. inclosed this draft with others, properly addressed to the Farmers’ and Mechanics’ Bank, and deposited said letter in the postoffice at the city of New York, in time for the afternoon mail, of that day for Philadelphia. This mail arrived at Philadelphia in due time, but the mail bags containing the letters for Philadelphia, were by the postoffice clerks in New Yoi’k, marked to be forwarded to Washington, and were therefore carried to the latter place. The mistake was discovered at Washington, and the mail returned to Philadelphia, reaching there on the 8d of June, and on the next day, June 4th, payment was demanded and refused, protest made and notice given. In discussing the question of negligence, or reasonable diligence, the court said: “ The only remaining inquiry is, whether the plaintiffs are chargeable with negligence for not forwarding the draft in question, by an earlier mail from New York to Philadelphia. It was sent by the usual, legal and proper mode. It was deposited in the postoffiee in season to reach the place where it was payable, before it fell due, by the regular course of the next mail, and there was no reason to believe that it would not be there duly delivered. It was actually sent by that mail, and, but for the mistake of the postmaster where it was mailed, in misdirecting the package containing it, would have reached its. proper destination, and been received there in season for its presentment when due. It in fact reached that place, when it should have done, but was carried beyond it, in consequence of that mistake. As that mistake could not have been foreseen or apprehended by the plaintiffs, it is not reasonable to require them to take any steps to guard against it. Indeed they could not have done so, as they had no control or supervision over the postmaster. They had a right to presume that the latter had done his duty. They could not know that he had misdirected the package, until it was too late to remedy the consequences. The occurrence of the draft being sent beyond its place of destination, was, therefore, so far as the plaintiffs were concerned, am unavoidable accident.”

We have been referred by defendants’ counsel to the case of Schofield v. Bayard, 3 Wend. 488, as being in dire'ct conflict with the case just cited from Connecticut; but a careful examination of the facts in Schofield v. Bayard will show that there is no conflict whatever between the two cases. The latter case contains an element of negligence on the part of the holder, which w*as absent from the case of Bank v. Norton, and which is wanting in the case at bar. The facts were, that a bill drawn by a firm in New York on a house in Liverpool was accepted supra protest, by a house in London. The bill was sent by the holder, who resided at Birmingham, to Liverpool for payment, instead of London, where it was payable. The holder’s correspondent at Liverpool returned the bill in a letter to the holder, with advice that the presentation should be made in London, and the letter was put in the post office, but by some oversight of the clerks in the post office, it did not get to Birmingham in time for the holder to forward it to London and have a regular demand made. It was held that the drawers were discharged. The court said : “ This case presents no impossibility, if due diligence had been used. The plaintiff should not have sent the bill to Liverpool at all. It is true that after the letter containing it had been left at Liverpool, on the 10th of November, it could not have reached London in season ; but it was the fault of the plaintiffs to have parted with the bill in the manner they did. Instead of sending it to Liverpool, they should have sent it to London, and then it would have been in season, and probably would have been paid. I am of the opinion that, by the law merchant payment should have been demanded in London on the 12th of November, and that not having been done, and there being no impossibility to prevent it but what is attributable to the want of due diligence on the part of the holders, the defendants are legally discharged, and are entitled to judgment.” It willbe scen that the court places its judgment expressly upon the ground that the holder was guilty of negligence in sending the bill to Liverpool, and this fault of his produced the impossibility by virtue of which he claimed to be discharged. -In the present case the letter containing the note was not misdirected; it was properly directed; it actually reached St. Paul in time, and but for its unauthorized return by the post master, the probabilities are that some agent or representative of the suspended bank would have x’eceived it in time to make due presentment, as the the testiinony tends to show that the representatives of the bank continued to x’eceive letters addressed to it, after its suspension. The holders therefore exercised due diligence in sending the xxote wheix they did; its arrival intime demonstrates that fact; aud they were not required to make ■provisioxi in advance for a possible, but unanticipated.suspension of the bank of St. Paul befox’e arrival of their letter, or for an unwarrantable interference with the same by the public officer in charge of the mails, after its arrival. We are of. the opinion, therefore, that under the circumstances of this case, the demand was seasonably made.

2. -:notice of non-payment: notary's certificate: prepayment of postage: mails: evidence, Objections are also made to the notice which was given by tlie notary. Thecex’tificates of'protest ai*e as follows: “ Due notices of the foregoing presentment, demand, refusal aud protest were put into the post office at St. Paul, as aforesaid, and directed as follows: Notice for Katharina Ambs, directed St. Louis, Mo.: Notice for W. and R. Iieinrichshofien, directed St. Louis, Mo.” And the notary testified, “I personally mailed such notices in the postoffice on the 15th day of July, A. I). 1861.” The objection is that he did not say that he had prepaid the postage; and the court instructed the jury that this was necessary. This objection is rather hypercritical. The word mailed, as applied to a letter, means that the letter was properly prepared for transmission by the servants of the postal department, and that it was put in the custody of the officer charged with the duty of forwarding the mail. Indeed the words “put-into the postoffice,” as used by the notary, have a technical significance which is well defined ; and they are commonly employed to designate the duty of the holder in giving notice. Since the enactment of the laws requiring all mail matter to be prepaid, these words have been used by this court in the sense of mailed. Renshaw v. Triplett, 23 Mo. 220; Sanderson v. Reinstadler 31 Mo. 485. In Story on Pomissory Notes, § 328, (Ed. 1859,) it is said, “ all that the law requires of the holder is due dilligence to send the notice within the proper time; and he has done his whole duty, when he puts it into the proper postoffice in due season, and it is properly directed. The holder has no control over the acts, or operations, or conduct of the officers of the postoffice, and is not responsible for the accident or neglect which may prevent a due delivery of the notice to the party entitled to notice.” It sufficiently appears in the qoresent case that the notice was properly directed. The evident and only meaning of the rotary’s certificate is that the notice was mailed to the defendants at St. Louis, Mo. The judgment will be reversed and the cause remanded.

All concur.

Reversed.