90 Tenn. 90 | Tenn. | 1891
Tliis is an action in the Chancery Court by an indorsee against the indorser of an overdue promissory note. His bill being dismissed by the Chancellor, complainant appealed. The substance of the pleadings is well stated in the assignment of errors and brief by complainant’s counsel, as follows:
“ On October 29, 1887, the complainant, M. Ros-■son, filed his bill in the Chancery Court at Trenton against the defendant, John R. Carroll; in which bill he charged:
“ That on December 25, 188G, the Paragoukl Stave Manufacturing Company, of Paragoukl, Ark., executed to the firm of Ware, Bittick & Co. a promissory note for the sum of $2,087, with interest at 10 per cent, per annum, and payable one day after date;
“That said Ware, Bittick & Co., on April 1, 1887, indorsed and transferred said note to the complainant, and that he was the holder and owner of the same;
“ That on April 12, 1887, the said note was duly presented for payment to the said Paragoukl Stave Manufacturing Company by John M. Davis, a Notary Public, and payment refused, and due protest thereof made by said Notary, and on the same day due notice was given to said Ware, Bittick & Co. and to all the parties;
*94 “That the said Ware, Bittick & Co., at the time of said indorsement and said demand and notice and these transactions, was a partnership, composed of Ware, Trank Bittick, and John B. Carroll;
“That Bittick died insolvent in Arkansas, and the residence of Ware was unknown' to complainant, and that he sued the defendant, John R. Carroll, alone;
“That said John 31. Carroll had duo notice of said protest and of said demand and failure to pay, both as a member of the firm of Ware, Bit-tick & Co. and othenvise, and that he is bound upon said indorsement pei’sonally and as a member of ’ the firm of Ware, Bittick & Co., and that he is bound in solido to the complainant;
“That said def> ndant, John R. Carroll, likewise received reasonable notice of said demand and failure to pay outside of and in addition to said protest and notice thereof by said Rotary;
“That the said note was overdue when indorsed to complainant, and the home of the Paragould Stave Manufacturing Company was in the town of Paragould, Ark., and complainant’s home was in Obion County, Tenn., and demand w-as made and notice given within a reasonable and lawful time;
“That said note was an Arkansas contract, and bears ten per cent, by special stipulation upon its face, and that such was the lawful rate in Arkansas ;
“That J.' R. Carroll was a citizen of Gibson County, Tenn.”
Oil February 24, 1888, tlie defendant filed Ms answer. In tliis answer lie admits that complain- , ant is tlie bolder and owner of tlie note described in tlie bill, and also admits tlie indorsement, and also admits that the home of the maker was in Paragould, Ark., and also admits that the note bears ten per cent., as charged; but insists that the maker was a corporation, and submits the question to the Court whether the note would be usurious for that reason. He denies that on April 12, 1887, demand and notice and protest were made as charged in the bill; denies that either he or Ware, Bittiek & Co. received any notice; denies that due demand was made and notice given; denies that he received legal notice in any manner; denies that “demand was made and notice given in a reasonable and lawful time,” as charged; and avers “that the first that respondent ever heard of the fact that the maker thereof had failed to pay the said note was some months after it was indorsed to complainant,” etc. lie admits that the members of the firm of Ware, Bittiek & Co. were correctly set forth in the bill, and states his own residence as at Kenton, Tenu.
The answer also pleads as an offset a note of fifty dollars which he held upon the complainant, which he asks to be set off against complainant's recovery, if complainant shall succeed in holding him, defendant,- liable as indorser, etc.
“For value received we transfer this note to M. Rosson. This first day of April, 1887.
“(Signed) "Ware, Bittiok & Co.”
Before referring further to the facts of the case, the principal legal questions involved will be considered.
What duties, with respect to demand and notice, does the indorsee of an overdue note owe to his indorser? or what legal steps must he take to convert the conditional liability of the indorser into an absolute obligation to pay the debt?
The distinguishing feature of the liability of an indorser of any negotiable paper is that such liability is contingent upon due presentment for payment and notice of dishonor.
Though a note transferred after maturity “ comes disgraced to the indorsee” (as said by Lord Ellen-borough in Tinson v. Francis, 1 Camp., 19), and is in his hands subject to all equitable defenses attaching to it and existing between the maker and payee at maturity, it is nevertheless negotiable; and in order that the indorser may be held liable, demand must be made of the maker and notice of non-payment given. Tiedeman on Com. Paper, Section 836; Chitty on Bills, 159, 160; Byles on
Yet the same strictness as to time of demand and notice is not, in all particulars, required with respect to such a note as must be observed in case of one indorsed before due.
As between indorser and indorsee, a note transferred after maturity is deemed equivalent to a note payable on demand, and is subject to the same rule of diligence in the matter of presentment for payment and notice of dishonor. To bind the indorser in such a case, it is incumbent on the indorsee to see that due demand is made in a reasonable time, and that notice is promptly given if payment he refused. Randolph on Com. Paper, Sections 671, 672, 1046, 1098; Daniel on Nego. lusts., Sections 611, 996; 2 Am. & Eng. Ency. of Law, 396, 397; 1 Parsons on N. & B., 381, 382, 519, 520; Byles on Bills (7th Ed., by Sharswood), 211, 212, and note, 169, 170; Colt v.
The point most . contested in argument at the bar — one ably and learnedly debated on both sides— concerns the time in which notice of the dishonor of a note indorsed when overdue, shall be given to the indorser. It is urged for complainant that the indorsee of such an instrument should have reasonable time in which to make demand, and like time in which to give notice; for defendant it is conceded that reasonable time is permitted for demand, but, as to notice, it is contended that it must be given with the same promptness as is required in case of indorsement before maturity.
The authorities are somewhat in conflict; but we think the great weight of juridical opinion, as expressed in the text-books and in judicial decisions, is in favor of the rule we have just stated, and sustains the proposition that the same diligence .must be used in giving notice of dishonor to the indorser of an overdue note as is required by the law-merchant in notifying one who indorses before maturity.
In our opinion, the rule as to notice of nonpayment to indorsers of time-notes before due, and of demand-notes, is, and should -be, the same; we have seen no difference stated as to that matter in any authority, and do not perceive how a sound
Then, if it be true, as announced by numerous authorities already cited, that indorsed demand-notes, and time-notes indorsed after maturity, are governed by the same rule in regard to notice of non-payment, it follows that 'one and the same rule of notice is to be applied to all the three classes of notes mentioned — time-notes indorsed before due, notes payable on demand, and time-notes indorsed after maturity.
"Why should not this be so ? It simplifies the law-merchant and facilitates transactions in commercial paper; in respect to which simplicity and uniformity in the rules of law are all-important and conducive to the prosperity and welfare of every community, especially of commercial people.
Why should one who acquires an overdue note have or need more time to give notice of nonpayment than the indorsee of a note acquired before maturity? He is justly allowed more indulgence in demanding payment of the maker, because the in-dorser knew at the time of the transfer that the maker was then in default; but when he has had all reasonable time for that purpose, the reason is not so satisfactory for extending the same indulgence with respect to notice. Certainly no more time for notification is needed by the one indorsee than by the other.
We quote the language of some of the writers on this subject:
*100 “If a negotiable note is indorsed after maturity, it becomes in effect a demand-note, and payment must be demanded within a reasonable time, and notice of dishonor at on.ee given to the indorser.” Randolph on Com. Paper, Sec. 1098.
“When a negotiable instrument is indorsed after maturity, payment must be demanded of the payor within a reasonable time, and notice, in the event of a refusal, given to the indorser, in order to charge him, it being- regarded as equivalent to one payable on demand.” Daniel on Nego. Insts., See. «11.
It will be observed that the latter author does not in terms state when the notice shall be given; but he does say, in effect, that the same rule as to notice is applicable to a note indorsed after maturity as to one payable on demand. lie makes substantially the same statement in Section 996 of the same learned and valuable treatise, and at the same time mentions the fact that some of the cases have been less strict on the subject of notice, thereby departing from the principle by him deemed “clearly correct.” Those cases are among the number relied on by complainant’s counsel, and will bo referred to again.
Says Parsons: “We have already seen that, in order to charge an indorser of a note payable on demand, presentment must be made within a reasonable time. Put if, after such presentment, the note is dishonored, there is no good reason why the same rules as to the time within which notice is
The two cases here disapproved by Parsons are
“The authorities,” says Wade, “are not in perfect accord as to the right of an indorser of negotiable paper which, at the time of indorsement, was past due to notice. The doctrine is announced in Gray v. Bell and Van Hoesen v. Van Alstyne that indorsers of overdue paper are not entitled to notice of its dishonor beyond such as would arise from the bringing of a suit within a reasonable time, which might extend to several months. In the latter case three months was regarded as a reasonable time. .But, notwithstanding the views expressed in these two cases, the current of authority seems to be decidedly against the exception therein contended for. Indorsers after maturity, as well as indorsers of paper due at sight or on demand, sustain the same relations to each other and to other parties in regard to the matter of notice as indorsers of time-paper before maturity, with the single exception that they have a right to insist upon the exercise of diligence on the part of the holder in demanding payment. Such indorsement is regarded as equivalent to drawing a new bill, or making a new note payable at sight or on demand.” Wade on Law of Notice, Sec. 738.
The two cases here declared to be decidedly against the current of authority are the same subjected to criticism by the two preceding authors.
“In every case of the dishonor of a promissory
Though this distinguished author does not in this quotation specify notes indorsed before maturity, or notes indorsed after maturity, nor define the time in which notice shall he given further than to say it shall he “due notice,” it is obvious from the comprehensiveness of his language that he intended to embrace both in the same general rule. Having discussed the subject of the indorsement of time-notes before and after maturity, and of sight and demand-notes, in preceding chapters, it was sufficient, in laying down a rule deemed Applicable to all alike, to say: “In every case of the dishonor of a promissory note it is the duty of the holder to give dm notice,” etc.
It is elsewhere said: “When a note is indorsed after maturity, it must be demanded of the maker within a 'reasonable time, and immediate notice given of non-payment.” Byles on Bills (7th Ed., by Sharswood), 170, note.
In Colt v. Barnard the suit was by indorsees against indorser of overdue note. Neither demand nor notice was proved. The head-note of the case is as follows: “Indorser of a note overdue is not liable thereon, unless demand is made upon maker within reasonable time, and immediate notice of
In Jones v. Robinson the indorsee of an overdue note sued the indorser. The testimony produced to show notice of non-payment was not admissible. The Court said: “When a note has been indorsed after maturity, as in the case at bar, it is in legal effect, as between the indorser and indorsee, an inland bill of exchange, payable on demand; while between the indorser and maker
In Patterson v. Todd the Court said: “ The questions for decision in this case have relation to
In Grraul v. Strutzel, the Court said: “ It is contended by counsel for the plaintiff that, as to the note which was overdue when it was indorsed, no demand of payment and notice of non-payment to the indorser was necessary. But such 'is not the rule. A note indorsed after due must be presented to the makers for payment within a reasonable time, and notice of non-payment must be given to the indorser immediately, which means, at furthest, the next day after default, where the parties reside in the same town.” , 53 Iowa, 712 (36 Am. R., 250).
In our own case of Union Bank v. Ezell the suit was against the indorser of an overdue bill of exchange. It was drawn on a citizen of Philadelphia, Penn., and indorsed by the Union Bank at Columbia, Tenn., to the plaintiff, who, presumably, resided at the latter place. The plaintiff caused the bill to be presented for payment twenty-six days after indorsement, which being refused by the drawee, protest was made, and the indorser “duly notified thereof.” In the opinion, this Court, speaking through Judge Green, said:
“ Two questions are made upon the record by the counsel for the plaintiff in error:
“First. — It is insisted that a bill of ‘exchange after due is functus officio, and that if indorsed, no action lies on the instrument against such in-*108 dorser. We understand the settled doctrine to be cleai’ly otherwise. A bill may be transferred as well after as before it is due. The difference is,, that if it is transferred after due, as there is. no-time fixed for payment, it is, in such case, pajm-bl.e on demand. The party who indorses a bill after it is due, and negotiates it, gives to it, as far as he is concerned, all the character and efficacy of a bill payable on demand.
“Second. — It is insisted that Iiis Honor erred in-telling the jury that the bill, being overdue when the plaintiff got it, it was necessary for him to-show that he had presented it for payment in a reasonable time; and that what was reasonable-time to make demand of payment was a question of fact, to be judged of by the jury according to-the circumstances of the casé. We think this instruction strictly correct.” 10 Hum., 386.
Nothing is said with respect to notice in this-case, except that the indorser was “duly notified” of presentment and non-payment; but the bill in suit was declared to have “all the character and efficacy of a bill payable on demand.” From this it follows that it Avas subject not only to the same rule as to demand, but also as to notice.
In Kirkpatrick v. McCullough, 3 Hum., 171, and Duffy v. O'Conner, 7 Bax., 500, no rule is laid down as to the time in which either demand or notice is‘required. The adjudication in each case is simply that the liability of an indorser of an overdue note is contingent upon demand and notice.
Taking the first and last sentence of this quotation together, it is seen that the Court, in effect, places an indorser before maturity and one after maturity on the same footing with respect to notice, and says that in either case “the indorser ought to have notice immediately.” Such is the clear meaning of the language used, and the doctrine so announced is in substance the same as that laid down in the later decisions and text-books from which we have made quotations on the same subject.
There are four adjudicated eases from other States in conflict with the proposition that the same diligence must be used in giving notice of the dishonor of a note indorsed when overdue as is required in case of one indorsed before maturity; three of them holding that more time is allowed in the former than in the latter case, and the other holding that commencement of suit is sufficient notice in the former case.
These cases are: Van Hoesen v. Van Alstyne, 3 Wendell, 75 (Lawyer’s Ed.); Gray v. Bell, 2 Richardson’s Law, 67 (44 Am. Dec., 277); Chadwick v. Jeffers, 1 Richardson’s Law, 397 (44 Am. Dec., 260); Jordan v. Hurst, 12 Penn. State, 269.
In .the first of these the Court said: “The note, having been transferred long after it was due, is to be considered as a note payable on demand, and the demand and notice must be made in a reasonable time. "What is a reasonable time depends on the circumstances of the case. From the remark of the defendant below, that Cooley would get into business again and pay, it is evident an immediate demand and notice was not contemplated. The demand was, in fact, made within a few weeks, and the notice given within.
Though notice given within two or three months after demand is here held to be sufficient to bind the indorser, the holding is predicated upon the peculiar circumstances of the case, among which was the fact that he evidently did not contemplate immediate notice. This is one of the two cases referred to disapprovingly by Daniel, Parsons, and Wade. It is also “commented upon and its correctness denied by Church, C. J., in Lockwood v. Crawford, 18 Conn., 361,” says a note to 1 Parsons on N. & E., 519.
The opinion is in accord with authorities heretofore considered in the announcement that “the note, having been transferred long after it was due, is to be considered as a note payable on demand.”
The head-note in Gray v. Bell is as follows: “ Demand and notice by the indorsee of a note past due are necessary to render the indorser liable as a new maker of the note. What is reasonable diligence in making demand of the drawee and giving notice to the indorser of a note past due is a question 'which should be left to the jury.” The indorser of an overdue note is, in this case, held to be in the attitude of an additional maker, - and not subject to the rules of an ordinary indorser. In the opinion the Court said: “ The paper being past due and, in mercantile
In Chadwick v. Jeffers the head-note states the points decided. It is this: “Pules of diligence in demanding payment of negotiable instruments, indorsed before due, do not apply to those indorsed after due. These rules are designed for the seenrit}-of parties secondarily liable, and when demand or notice is not necessary for their protection it is dispensed with. Commencing suit and notice tliore-'of to indorser is sufficient notice and demand where the note was overdue when transferred, and the suit was begun in a reasonable time and at the request of the indorser.” 44 Am. Dec., 260.
The point decided in Jordan v. Hurst is well stated in the syllabus, as follows: “An indorser of an ovei’due note is not discharged by want of notice for three months of the subsequent demand and refusal, there being no evidence that he was injured by such want of notice.” 12 Penn. State, 269.
This case is much criticised aud virtually overruled by the same Court in Patterson v. Todd, 18 Penn. State, 426 (57 Am. Dec., 622), to which we have already referred and from which we have made free quotation.
So, the only one of the four adverse cases that has escaped unfavorable criticism is Chadwick v. Jeffers, and it may have met the same fate aud the fact be unknown to us. Certainly it cannot stand against so nearly all the other authorities.
Stothart & Bell v. Parker, 1 Overton, 260, decided by this Court in 1807, is also relied on by
It is the “ genera] rule ” with which wo are now dealing; and by that rule, it is said in the last case, “a reasonable time” is allowed in which to give notice. It will be observed, however, that no difference is made between the rule where the note is indorsed before due and where it is indorsed after due. The reasonable time meant by the Court is alike applicable to both.
Many of the older authorities state, without reference to the time of indorsement, whether before or after maturity, that notice of dishonor must be given “within a reasonable time,” and that what constitutes such reasonable time is a question of fact for the jury in each case. But the Courts have now fixed this period so definitely that it has become a question of law by the weight of authority, and cannot so appropriately be now spoken of as merely reasonable time. Byles on Bills, 285, 286, and notes; 1 Parsons on N. & B., 506,
The modern authorities do not meau, of course, that the time allowed shall be so short as to be unreasonable, but simply that the period is now so well fixed as a matter of law that it can be better defined otherwise than by using the rather indefinite phrase of some of the* cases. Whatever terms may be used, they generally mean the same thing, in legal contemplation, or nearly so, and refer to indorsements before and after maturity, without distinction as to the time of notice.
“Notice of dishonor,” says Randolph in his very learned work, “must be sent in all cases within a reasonable time. The indefiniteness of this phrase has, however, been closely restricted and defined by modern decisions. In sending notice of dishonor, every party through whom it is ti’ans-mitted is bound to use reasonable diligence in forwarding it; and the rule requiring notice of dishonor to be sent in a reasonable time applies to notice given to an indorser after maturity, no greater diligence being required in his case than in that of an ordinary indorser or drawer.” Randolph on Com. Paper, Sec. 1251.
The language employed by the Court in Stothart & Bell v. Parker, supra, does not authorize the distinction counsel would make, or justify the contention that more time for giving notice is
Then, the irresistible conclusion from the authorities is that the rule with respect to the time within which notice of non-payment must be given to the indorser is the same whether the indorsement be made before or after the maturity of the note.
The next inquiry is as to the time within which the notice must be sent — how soon after dishonor? The authorities seem to be agreed that it must be sent on the next regular business day; but, in case the parties reside in different places, and the notice is to be transmitted by mail, there seems to be some conflict as fo whether it must be sent, at all hazards, by the mail of that day, depart when it may, or whether, if the departure be at an unseasonable hour, it will be "sufficient to send it by the first mail of the second day; and, again, whether, if there be two mails on the first day after dishonor, it will answer to send the notice by the latter.
Byles says: “If the post does not go out on the next day, notice need not be posted till the day after, or till the next post-day.” Byles on Bills, 286.
Cliitty .says: “And if there be no post on the next day, or if the post go at an unreasonable hour in the "morning, then he must send notice by the very next post. But he is not bound, on
Rent expresses the opinion that it is sufficient if the notice be mailed at any time on the day after dishonor (3 Kent, 106, note); and Story says this is now the established doctrine (Story on Prom. Notes, 411); but Parsons thinks it too liberal to the indorsee, as almost necessarily giving him more than one whole day (1 Parsons on N. & B., 508); and with him Daniel seems to agree (Daniel on Nego. Insts., Sec. 1040).
A later author says: “The rule requiring notice to be given in a reasonable time has been narrowed down so as to require notice to be given, at latest, on the next day after the maturity of the paper.” Randolph on Com. Paper, Sec. 3 259.
Agaiu: “But the better rule is now generally recognized that notice must be mailed in time to go by the mail of the next day, if there is any, and that any mail of that day is sufficient.” Ib., 1266.
Daniel states a nile, which he says is sanctioned by numerous and eminent authorities, and may be safely followed in all cases, thus: “In other words, the notice must be sent by the first mail which leaves after the day of dishonor is passed, and does not close before early and convenient business hours of the day succeeding the day of dishonor, the design of the law being to afford the holder an opportunity to mail the notice on the day sue-
By another learned jurist the rule is stated as follows: “The older authorities state that the notice must bo given within a reasonable time after the dishonor. But the present rule of the law-merchant is that the holder has until the expiration of the next day after dishonor in which to give notice, subject to certain modifications necessary in the eases where the notices have to be sent away from the place of protest. "Where the party entitled to notice resides in the place of protest, the notice may bo sent to him at his residence at any time during the day following the dishonor of the paper before the hours of rest. But if he is to leave the notice at the party’s place of business, it -must be left during business hours. Where the notice is to be sent to one resident elsewhere, the holder has until the last mail of the day after dishonor is made up, provided the mail on that day does not leave at an unreasonable hour. If it leaves at an unreasonable hour, the holder has until the next mail to send out his notices.” Tiedeman on Com. Paper, Sec. 337.
The rule deduced by Parsons from what he calls “ the most recent authorities,” and that which he approves, is “that the holder is bound to forward the notice as early as by a mail of the day after dishonor which does not start at an unreasonably early hour; and if there is no mail which
On the next day after the indorsement complainant placed the note in charge of the Southern Express Company, at Union City, for collection from the maker at Paragould, with special instruction to “ protest if not paid.” This instruction was written on the shipping envelope of the company, in which the note was sent tos, Paragould and returned. On this envelope, when returned, after the printed words, “when presented,” and in the space alloived for answer, were written the following figures: “4 — 4, 4 — 12,” indicating clearly that the note had been twice presented for payment, once on the fourth and again on the twelfth of April. The president of the Paragould Stave Manufacturing Company, which was the maker of the note, testifies that the agent of the express company twice demanded payment of him, but when this was he does not state. The fair .inference is that the figures indorsed on the envelope indicate the dates at 'which such demands ivere made.
On the twelfth of April John M. Davis, as Notary Public, -wrote on the note, “Protested for nonpayment,” and made full and formal certificate of protest, reciting, among other things, presentment of the note by himself to the maker for payment, and the refusal to pay. In addition to the pro-
The certificate alone would have been sufficient * to establish the facts therein stated, in the absence ■of contrary proof, being prima facie evidence of the facts which the Notary, in virtue of his office, was authorized to certify. Golladay v. Bank, 2 Head, 58; Sulzbacher v. Bank, 2 Pickle, 201; Code, §§ 1800, 1801; Randolph on Com. Paper, Secs. 1310, 1312; Gardner v. Bank, 1 Swan, 419; Caruthers v. Harbert, 5 Cold., 362; Colms v. Bank, 4 Bax., 422; Spence v. Crockett, 5 Bax., 576.
The Notary’s certificate also recites that he had on the same day “given due notice to the parties concerned, in writing, * * * in the manner following:
“‘To Paragoui.d Stave Manufacturing Company, By handing to agent of “ 1 Ware, Bittick & Co., Southern Express “ ‘ M. Rosson.
Though the recital is that he gave notice to Ware, Bittick & Co. as a firm only, and that he did that “ by handing ” it to the express agent, the Notary states in his deposition that he thinks
Since much stress is laid on his evidence, the statements of the Rotary on this point will be noticed more at length. His answer to the general question whether he gave notice of non-payment and protest, when, and to whom, is: “I did. On April 12, 1887, I sent notices to Paragould Stave Manufacturing Company, Ware, Bittick & Co., and M. Rosson,” failing to mention the name of defendant 'or to say that he sent him notice. When asked pointedly if he, sent notice to the defendant, J. R. Carroll, at Kenton, Tenn., he replied : “ Think I did, but cannot say positively.” Being further interrogated by complainant’s counsel, he said: “ My best recollection is that I asked Mr. John Rosson Mr. John R. Carroll’s address for the purpose of giving him notice of protest of note, and suppose he had notice.” The next question and answer are as follows: “How did you give him notice? Through the Bnited States mail?” Answer: “Bo not remember; - suppose in same manner, of course, as the others.”
On cross-examination this witness said this was the first note he ever protested; that he could not say “positively” how many notices he handed the express company, and did not remember to what point the notice to Ware, Bittick & Co. was addressed.
John Rosson corroborates the Rotary to the extent of saying that the latter asked him for the
Notice toas sent by mail to the complainant on the twelfth day of April. This is demonstrated by the post-mark on the envelope containing the notice; but whether mailed by the Notary, or by the express agent after receiving it from the Notary, does not appear. The supposition that it was done by the agent would he consistent with the certificate of protest. However, if assumed to have been done by the Notary himself, that would he only a circumstance indicating, at most, that he made duplicate notices for each party to he notified, handing one set to the express agent and mailing the other himself. It would not establish the insistence that notice was, in fact, mailed to the defendant, either in his own name or in that of the indorsing firm of which he was a member.
If the express agent mailed one of the notices handed to him by the Notary to the complainant, it would be reasonable to suppose that he mailed the others likewise to the parties for whom intended. But this would be one supposition based on another, which, of course, cannot he a substitute for proof of * the fact. What the express agent did with any of the notices stated in the certificate of protest to have been placed in his hands, is not disclosed in the record; his testimony was not taken. The defendant denies that he received any notice for himself or his firm.
The evidence alluded to, which is substantially
At best, it but discloses an impression on the mind of the Notary that he mailed notice to defendant, and raises a mere inference that the express agent likewise gave him notice by the same method. Impressions and inferences are not enough; to meet the requirement of the law, evidence of an affirmative and positive character must be produced. Whitaker v. Morrison, 1 Fla., 25 (44 Am. Dec., 627); Byles on Bills, 289; Randolph on Com. Paper, Sec. 1312.
A Notary’s belief, based on entry in his notarial book and his habit, “is good evidence,” though he have no independent recollection of the transaction. Bank v. Cowan, 7 Hum., 70.
So entries on such book opposite the protest, reciting, “Indorser duly notified in writing,” and “Indorser duly notified verbally,” have been held ■sufficient proof of notice when coupled with proof of Notary’s habit of business. Bell v. Perkins, Peck, 262; McNeill v. Elam, Peck, 268.
It has also been decided by this Court that the Notary’s certificate, reciting that he gave notice, in connection with his statement as a witness that he was “satisfied in his own mind that he had given the notice as stated in his certificate on the
But those cases are not in point here; for in this case there is no confirmatory entry on the notarial book, no recital in certificate of protest that the Notary gave defendant notice, and no proof that to have done so would be in accord with his business habit. On the contrary, he shows that he made no entry; that he had no business habit at that time, it being his first official act, and the certificate of protest produced is in direct conflict with his impression; for it recites that he gave notice to the parties concerned “by handing” same to agent of the express company.
But complainant’s case is not rested alone on the assumption that notice was duly sent to defendant from Paragould, the place of demand and protest. On the contrary, he claims that he was himself entitled to the rights of an indorsor with respect to notice, having placed the note in the hands of the express company for collection, though without indorsement; and that in the exercise of a legal right he gave the defendant in person proper notice in due time after receiving his own notice, whereby the defendant’s liability became fixed the same as if notice had been sent him direct from the home of the maker and place of' demand.
It is a well-established rule of law that where
In our own cases, supra, and in several other cases cited by the text-writers for the proposition that the principal is entitled to notice as an in-dorser, and to time after its reception to notify those antecedent to him on the paper, the beneficial owners had nominally indorsed the paper to the collecting agent; but we do not understand that the mile depends on the indorsement as a prerequisite. Certainly there is the same reason for the rule in each case. The agent has no beneficial interest in the paper in either instance. His relation and his duty to his principal is the same, whether he receives the paper by nominal
In New York it was decided that an attorney to whom a note was sent for collection, without indorsement, was entitled to one day in which to notify his client of the dishonor, and that the client was allowed still another day to send notice to his indorser. Farmers’ Bank of Bridgeport v. Vail, 21 N. Y., 485.
“And it has been held,” says Randolph, “that where the holder employs an attorney to ascertain the residence of an indorser, the attorney, after learning the fact, may take a day to inform his principal of it, and after receiving such information he may have until the next day to give notice.” Randolph on Com. Paper, concluding sentence of Sec. 1262, citing Frith v. Thrush, 8 B. & C., 387 (15 E. C. L. R.).
Under the head of “Banks and other Agents for Collection” Daniel cites the same case for the same proposition, and concludes the section by giving the reason for the general rule as follows: “ The factor, or other agent or attorney, may not know which of the prior parties his principal may desire-to hold bound to him; or he may not know where notice would find them, as he has no in
Another distinguished writer bases the rule on the same reasoning (Story on Prom. Notes, Sec. 326), which, as we have already said, applies with the same force and propriety to a note or bill passed to the agent by delivery merely as to one indorsed to him for collection.
So, on the authorities cited and on the reason of the rule, we are of the opinion that the question of indorsement or no indorsement to the collecting agent is entirely immaterial in the decision of this case; and, therefore, that complainant, though he placed the note in the hands of the express company by delivery merely, and without indorsement, was, nevertheless, entitled to one day after receiving information of its- dishonor in which to give the defendant notice thereof, provided complainant’s agent exercised due diligence in making demand and informing him of non-payment. If there was any negligence in those matters on the part of the agent, that negligence is to be imputed to the principal, as in any other case, and, if sufficient in degree, will defeat his action.
We are aware of the statement in at least one case that the owner of a paper placed in the hands of a collecting agent by mere delivery should not be allowed any of the advantages of
The stamp of the postmaster at Union City on back of envelope containing notice to complainant shows that it reached his office April 14. Complainant testified that he received liis notice “ about April 14 or 15;” again, “about April 15, 1887;’ that at the same time and place, and by mail, he received another notice just like his own, though in a different envelope and without any instruction or explanation as to use to be made of it, so far as recollected; that “a day or two after” receiving his notice, “ about April 16 or 17,” he went to Kenton on a delayed train, and, “ after night,” handed the other notice to the defendant, and told him of the return of the note protested, and that he “ needed the money on it, and looked to him for it.”
Says Lord Ellenborough, in Lawson v. Sherwood, 1 Stark., 314 (2 E. C. L. R.): “ The witness says two or three days; but the third day would be too late. It lies upon you to show that notice was given in due time, and I cannot go upon probable evidence without positive proof of the fact.”
This language is quoted in Byles on Bills, 289, as a correct statement of the English rule.
Citing the same case and American authority in addition, another writer says: “ The plaintiff must distinctly show that notice was given on the proper day; it will not suffice to show that it was given on one of two days, because the latter would be too late.” Daniel on Negó. Insts., Sec. 1051.
Already it has been seen that the fact of formal demand and protest on April 12 is amply proven; whether it is shown to have occurred within a reasonable time is yet to be considered. In sending the note for collection the next day after acquiring it, with special instruction to “ protest if not paid,” the complainant exercised even greater diligence than the law required of him; and the demand of payment, which seems to have been made by the express agent on April 4, was certainly within a reasonable time after the indorsement. Had the note been then protested, there would have been no room for denying that de-
In view of the fact that there had been a demand on the fourth without protest, we are of the opinion that the subsequent demaud and protest were not good in law. The demand on the fourth could not he made effectual by protest on the twelfth; and demand having been made on the former date, it was then out of the power of the indorsee to bind the indorser by a second demand on the latter date. Protest on the one day cannot be coupled with demand on the other day; nor can a demand, ineffectual against the indorser because not followed by due protest, he abandoned, and another one, without such defect, substituted for it after the lapse of eight days, so as to charge the indorser.
That the demands by the express agent may not have been made at the maker’s office is unimportant in this litigation, 'since the maker made no objection on that account. Nor does it help complainant’s case that he specially instructed the express company to protest the note if not paid, and had a right to believe that it would be done promptly and legally; for, as between complainant and defendant, the failure of the express company to have proper demand made is chargeable to com
Again, passing the questions of demand and notice altogether and irrespective of them, it is insisted, in behalf of complainant, that he is entitled to a recovery on two other grounds:
First. — That the maker of the note was insolvent, and known by the defendant to be so at the time of the indorsement, and that lie, therefore, is liable without demand and notice.
Second. — That defendant admitted his liability for the debt, and took steps to have it paid after the refusal of the maker to pay, thereby superseding the necessity of demand and notice, and rendering himself liable without respect to either.
Neither of these grounds of relief was alleged in the bill; but, pending the argument of the case before the Chancellor, complainant asked leave to amend so as to include them. Motion to amend was overruled.
This action of the Court is assigned as error; and, besides, it is urged that, without the proposed amendment, the facts mentioned should be considered under the original bill, and relief granted accordingly.
Pretermitting the questions of pleading and also that as to whether insolvency of the maker of a promissory note known to the indorser at the time of indorsement will excuse demand and notice (it was decided in Stothart & Bell v. Parker, 1 Overton, 262, that it would), it is sufficient to
The doctrine is well established that if an in-dorser, with full knowledge that he has been discharged from liability by the failure ■ of his in-dorsee to make proper demand and give due notice of non-payment, promise to pay the note or acknowledge his liability therefor, he thereby binds himself, and may be proceeded against as if his liability had been legally fixed in the first instance. To have this effect, the promise or acknowledgment must be distinctly made. If it be not unequivocal, or be not with full knowledge of his discharge, it will not avail the indorsee any thing. Bogart v. McClung, 11 Heis., 105; Spurlock v. Union Bank, 4 Hum., 336; Golladay v. Bank, 2 Head, 58; Martin v. Ewing, 2 Hum., 359; Williams v. Bank, 9 Heis., 441; Union Bank v. Rawlings, 1 Leg. R., 226; Seay v. Furgerson,
It is not claimed that defendant ever promised complainant, or any one for him, that he would pay the note; hence, he must succeed, if he succeeds at all on this branch of the case, on the ground of an acknowledgment or admission of liability.
"Ware, who, as -well as defendant, was a member of the firm of Ware, Bittick & Co., states that defendant told him at Paragould, between the fifteenth and twentieth of April, 1887, that the note had been protested, and complainant had been to see him about the money; that he (defendant), in same conversation, asked witness why the note had not been paid, and said ■ “ it would have to be paid.” The next two questions and answers are explanatory of defendant’s declaration that the note “ would have to be paid,” and disclose the only admission or evidence of admission .supposed to have been made to this witness. They are:
“19. Who did he say would have to pay the note ?
“A ns. — We, I think.
“ 20. Who did he mean by we ?
“Ans. — I could not say whether he meant the firm of Ware, Bittick & Co. or the Paragould Stave Manufacturing Company.”
John Posson says he had 'a conversation with defendant, at Paragould, after the tenth day of May; that defendant told him the note had been
On April 22, 1887, defendant wrote complain- • ant that he had just been to Paragould, “but failed to accomplish any thing-as yet;” that if a trade pending there “is accomplished, your debt is to be paid ofí’;” and concluded with the statement that he would write again as soon as he should “hear from the parties.”
On the twenty-seventh of May following he wrote the complainant in these words:
“We were at Paragould last week, and found the business in such condition that we attached all the company’s property for what it owed us and you. We [meaning himself and a confidential friend and adviser] put your claim in with ours, and got the business in a shape that it will be closed out as soon as it can be done, and the property all sold. This is the best we could do, as we could see no way to get any cash out of it for you now. * * *
“ (Signed) J. R. Carkoll.”
While these facts show that the defendant thought his firm, which had indorsed the note to complainant, was probably liable to him for its payment, and that he was taking such steps as he deemed best to obtain collection from the maker, they do not establish an admission of liability on his part. They fail to show that explicit acknowledgment of accountability which is necessary to revive the
The other assignments of error need not be mentioned* further than to say that they relate to rulings of the Chancellor on evidence, and that we have considered all the evidence that was competent and none that was incompetent.
Let the decree be affirmed.
