43 Me. 144 | Me. | 1857
This is an action of assumpsit against the defendant, as endorser of a promissory note, of which the following is a copy:
Dolls. 5000. Boston, March 12th, 1856.
Four months after date, we promise to pay to the order of Rufus K. Page, five thousand dollars, value received, for Maine Carpet Company. E. E. Rice, Treas’r.
This note was endorsed by Page in these words: “ Pay to the order of A. Leonard/' and by the defendant endorsed in blank; also endorsed by Alb’t H. Small, Cash’r, in these words: “ Pay C. H. Warren, Cashier, or order.”
The plaintiffs offered in evidence the note, also the notarial certificate of protest, and notices of non-payment of the note, signed by A. Bates, Notary Public, dated at Boston, July 15, 1856.
The defendant contends that the notice which the plaintiffs have undertaken to prove, if duly sent or received, is defect-, ive and insufficient; that it does not state that the note has been dishonored, or state facts from which its dishonor might reasonably have been inferred.
The Notary states what he did do; that he exhibited the note at the place of business of the promissors, in Harrison Avenue, and demanding payment thereof, was answered by the person in charge, that the promissors had left no funds there to pay said note, and that said note remaining unpaid, he duly notified the endorsers by written notices, sent them
It may be reasonably inferred that he stated substantially these facts in the written notices which he sent. By R. S., chap. 44, sec. 12, the protest duly certified by a notary public, under his hand and official seal, shall be legal evidence of the facts stated in such protest, as to the same, and also as to the notice given to the drawer or endorser, in any court of law. In Bradley v. Davis, 26 Maine, 50, Mr. Chief Justice Whitman says, “ It is not stated in the statute that such certificate shall be conclusive evidence of those facts; ” all that was stated in the notarial certificate in this last named case, after stating the demand, &c., was, “ I then notified the maker and endorser of the non-payment of said note,” and the court say, “ we have no reason to doubt that the notice contained all that it was essential that a notice should contain; and that it contained information that the note had been protested for non-payment.” In the case at bar, if the notice had, in part, been deficient in any important respect, it might easily have been proved by the defendant, as his daughter, Mrs. Hill, stated in the deposition taken by him in this case, that she had the notices in her house at the time the deposition was given. This case differs from those cited, where the notices were actually produced, or the exact terms of them proved or admitted, by which their inefficiency was conclusively established; as in the case, Gilbert v. Dennis, 3 Met., 506, and 9 Met., 174.
The next and most important question in this case is, was the notice to the defendant rightly directed aqd sent to him at Hallowell? He contends that his residence at the time the note was protested was in the city of New York, and that notice should have been sent to him at that place, instead of Hallowell.
There is nothing on the note to indicate the residence of the defendant. It is dated at Boston. Rufus K. Page was a prominent business man in Hallowell. The defendant had
The defendant contends that in January 1853, he transfered his residence from Hallowell to New York, and that he has had no residence in Hallowell since that time, but that his residence has been in the city of New York.
When the note was negotiated by Alden Sampson, he represented to the plaintiffs that the defendant was president of the Bank of Hallowell, in Hallowell. Daniel Holland, president of the Lewiston Falls Bank, testified that at the time the note was discounted, he learned from E. E. Rice, that the defendant was a prominent business man in Hallowell, and always had been, and was president of the Bank of Hallowell.
The defendant testified that he removed from Hallowell, in the month of January, 1853, to the city of New York, and that ho has ever since had his residence there. A. S., Washburn, cashier of the Bank of Hallowell, testified that there had been no new bills issued from the Bank of Hallowell since 1854; that he “thought there were bills of that bank, dated as late as the winter of 1854, over the signature of the defendant, and issued by witness, as cashier; ” “ that the defendant had signed some bills of the Bank of Hallowell since he had teen in New York.”
By the records of the Bank of Hallowell, it appears that at the annual meeting of the stockholders, held October 9th, 1855, the defendant was chosen one of the directors of the bank, and is the first person named on the list, and the second person named is R. K. Page. In January 1853, the defendant was elected president of the Bank of Hallowell, by the directors, and not since. He held the office of director of the bank until October 1856. He never made any formal resignation as director, at any time. He was not re-elected a director in October, 1856.
Thomas W. Newman testified that he was and had been post master at Hallowell since the first of May 1853. That the defendant has had a box in the post office at Hallowell,
By the statute of this state, on banks, chap. 77, sec. 4, it is provided that none but a stockholder in such bank, and a citizen of and resident in the state, shall be eligible by the stockholders to the office of director. Men are presumed to know the law; and it is not to be presumed that the stockholders of this bank, and the defendant, or either of them, intended'to violate it, in their management of this institution. Will it be said that he was chosen a director of the bank,after his removal from the state, without his knowledge and consent? This, to us, seems improbable. Besides, it is satisfactorily proved that he acted as president of the bank, and signed bills as such, after his alleged removal to New York. Every bill signed by him, and put in circulation after January, 1853, was notice to the public, that, at the date of the bill his residence was in this state; and it is not contended that he had a residence at any other place in the state, if he had none in Hallowell. The defendant does not state that he has, or ever had a place of business in New York, that he ever kept house there, or voted or paid taxes in that city. He might have had a temporary residence there, for the purpose of avoiding taxation in Hallowell; or he might have supposed by residing in New York, he could give a wider circulation to the bills of the bank; or he may have desired to have the place of his residence uncertain and equivocal, in order to avoid his responsibility as an endorser.
Notwithstanding his actual residence was in the city of New York at the time he endorsed the note in suit, and at the time it became due; yet, if ho held himself out to the public, or allowed others to hold him out to the public as a resident of Hallowell, and thereby deceived the plaintiffs,
We cannot avoid the conclusion that if the defendant did not receive due notice of the protest for non-payment of the note in suit, it was because he did not wish to receive such notice. It was his own fault.
The notice was duly deposited in the post office, directed to him at Hallowell. It came into the hands of his daughter, Mrs. Hill. In answer to the question, “ Since 1853, have any letters been received at the Hallowell post office for your father, and if so, what became of them?” she says, “I have taken some of them and sent them to him; some I have taken and have not sent them.” Subsequently the inquiry is made of her, “What kind of letters was it that you received and did not forward to your father?” She answered, “ Notices from the Lewiston Falls Bank. I have them in the house now.” She says, subsequently, “My father did not ask me to send them.” She does not say that she was not instructed by her father not to send them. It would have been very natural for her to have forwarded the notices to her father, after having ascertained what they contained, unless she had, in some way, intimations from him not to do so, but to retain them. We are to draw such inferences in this case, as a jury might draw. It seems to us a question of fact, rather than a question of law. The fact seems to be established, that the defendant has actually resided in the city of New York, most of the time since January 1853, till the present. That since that time, he has held himself out, or allowed others to hold him out, as a resident in this state, by permitting himself to be chosen a director of the Bank of Hallowell, and president of the same, and acting as such by signing its bills. That the plaintiffs were led by these circumstances communicated to them, to believe that his residence was in Hallowell, at the time the note in suit was endorsed, and at the time it was protested for nonpayment, and that they acted accordingly. They might well
We are of opinion that the plaintiffs have used due diligence in order to give the defendant notice of the non-payment of the note when it became due and payable, and that according to the agreement of the parties, a default must be entered. If it should be supposed that proof of depositing notices in the post office, directed to the defendant at Hallo-well, and received by his daughter, Mrs. Hill, is not equivalent to actual notice, and therefore does not sustain the allegation in the writ, of actual notice, the plaintiffs may have leave to amend, by alleging the use of due diligence on their part, in order to give notice.
