Renshaw v. Triplett

23 Mo. 213 | Mo. | 1856

Scott, Judge,

delivered the opinion of the court.

This case comes here on the general instruction, that, on the evidence, the plaintiff was not entitled to recover. Under such circumstances, the counsel have agreed that the only point determined below was, whether there was such notice to the prior endorsers as would warrant a recovery against them by a holder who had taken up. the bill whilst in the hands of the Bank of Missouri.

A bill of exchange, payable thirty days after date, was endorsed to the Bank of Missouri after several intermediate endorsements. The bank endorsed it for collection to a bank in New Orleans. The bill was presented for acceptance, and acceptance being refused, was protested. Notice of this protest was deposited in the post-office, directed to the Bank of Missouri, enclosing notices also to the prior parties to tbe bill. The letter enclosing the notices o£ the protest for non-acceptance was never received by the Bank of Missouri. Afterwards, the bill was protested for non-payment, and due notice of this protest was given to all the parties. The bill enclosed in this notice of protest was noted on its face as having been protested for non-acceptance, and after the receipt of it no notice was then given of the protest for non-acceptance.

Are the endorsers on the bill prior to the endorsement to the Bank of Missouri, liable on this state of facts ? The fact that the bill was only endorsed to the bank in New Orleans as agent for collection, does not affect this question, it being well settled, that, for all the purposes of thé law, the agent or banker to whom a bill has been transmitted for"the purpose of procuring payment thereof at its maturity, is 'treated as substantially a distinct and independent holder. (Story on Prom. Notes, § 326.) It is equally well settled that, though a bill payable at a particular day, or at so many days after date, is not required to be presented for acceptance before it is due, yet it may be so presented, and if that is done and acceptance is refused, the holder must conduct himself in the same way, and make protest and give notice in the same manner as he would upon a bill payable at so many days after sight. (Story on Bills, § 228.) If there be several endorsers on a bill, the last of whom shall receive notice of the dishonor from the holder, it will be sufficient for him on the next day to communicate notice thereof to the next antecedent endorser, and he to the next, and so on ; and thus, in some cases, several days may elapse before notice reaches the first endorser. The holder of a bill, when it has been dishonored, may either resort to his immediate endorser, and then he must give him notice in due time ; or he may resort to any or all of the other endorsers, in which case he must give them notice respectively, in the same manner as if each was the sole endorser; for the holder is not entitled to as many days to give nolice as there are prior endorsers, but each endorser has his own day. (Story on Bills, § 294.)

IE a notice is put in the post-office to go by the proper post, it is not important to the rights o£ the holder whether the notice ever reaches the party entitled to it or not. All that the law requires of him is to send due notice in proper time, and he has discharged his whole duty when he puts it into the proper post-office, in due time, directed in a proper manner, (Story on Prom. Notes, § 328.)

IE, according to the foregoing principles, notice is imputed by law to the Bank of Missouri, then she was not guilty of any negligence in not giving notice to the prior endorsers. Unless she was served with notice, she could not give it. The Bank of Missouri was entitled to one day to give notice, after her own receipt of notice. As she never did receive notice, she could not be guilty of negligence in not communicating it to others. If the principle is correct of imputing notice from merely placing in the post-office a letter containing it, whether that letter is received or not, then there is no hardship in holding the prior endorsers of this bill liable though they have not received notice. If the bank is held liable without actual notice, why should not the prior endorsers be equally bound ? It would be against every principle of justice to visit on one party only the consequences of the accidental failure to receive notice, when he is no more in fault than any of the other parties. Under such circumstances, equity requires that the liabilities of the parties to the bill should not be disturbed, and that they should stand as though all had received notice.

As to the ground taken that the bank should have given notice of the non-acceptance of the bill after she received notice of the non-payment, it appearing from the face of the bill, enclosed in the letter containing notice of the non-payment, that it had been protested for non-acceptance, it may be answered that notice of non-payment was sufficient to put all parties upon inquiry after their interests. Moreover, a right of action on a bill accrues immediately after protest for non-acceptance, although the bill may not be due. (Chitty on Bills,. 340.) Now if the right of action accrues immediately on protest for non-acceptance, that right could not afterwards be defeated by a failure to give notice of non-acceptance after notice of the protest for non-payment was received. (Lambert v. Ghiselin, 9 How. 552.)

The judgment is reversed, and the cause remanded ;

the other judges concurring.