Rowland v. Rowe

48 Conn. 432 | Conn. | 1880

Pardee, J.

It appears in this case that up to the day of the maturity of the note in question the plaintiff had neither knowledge nor reason for believing that the endorser had changed his residence. The note bore date at East Haven; there the endorser had lived for forty years, including the day upon which he made the endorsement, and this he placed in the hands of the maker of the note, presumably -with knowledge that he intended to sell it in the open note market of New Haven, and probably to a person who would have no other information as to the endorser’s residence than that furnished by the note and orally given by the maker.

The plaintiff having ascertained the truth as it was at the time of the purchase might well rest upon that, and was not thereafter called to make any inquiry into the matter until some information came to him which made it his duty so to do. The holders of notes and bills are not bound to a continual watch over the movements of endorsers, unless for good cause; the question as to diligence arises only when there is reason for action.

It is found that the endorser received very few letters; from this we may infer that his business transactions were also few; that his circle of acquaintance was small; that he might transfer himself alone, without family, for the distance of two or three miles, from the house where one daughter lived into a house with another, practically from one part of New Haven to another, without knowledge of others than his nearest neighbors and most intimate friends; and in fact the change was so quietly made as to fail of recognition in the city'directory.

We infer too from the finding that after as before this change he visited the same three places in the center of the city; and it is found that after his return from England in May, up to the time of the maturity of the note, he spent most of his time tilling the land about his former home in East Haven. During this time if the plaintiff had seen him in New Haven nothing would have suggested a change, he might well have assumed that 'the residence indicated upon the note continued, might well believe and inform the notary that he lived in East Haven; and the notary, protesting for the collecting- bank, might well act upon that information, supplemented as it was by the belief of two of the bank clerks living presumably within two miles of the endorser, that he lived in East Haven, although they had no personal acquaintance with him

By the combined force of these circumstances the endorser was well held by the notice of July 3d, directed to East Haven; he had in effect told the holder that he lived there when the latter bought the note; he had never given him any reason to believe that he had changed his residence, or occasion to make other inquiry than that which was made.

Monday, July 5th, 1880, was a national holiday. On the afternoon of Tuesday, July 6th, the plaintiff, learning that the note remained unpaid, went to East Haven to find the maker and endorser. He enquired of a former neighbor, who told him that the maker was without property, and that he went to parts unknown two days before the maturity of the note; also that the endorser had removed to New Haven, and lived in a house standing about seventy-five rods off from the plaintiff’s most direct route back to that city. He received this information at about dark and returned to New Haven by another than the most direct route, without seeing the defendant, supposing that the notary had protested the note according to law.

On Saturday, July 10th, he informed the notary of the endorser’s change of residence, and on the same day the notary mailed a second notice of protest directed to him at New Haven.

The legal effect of the deposit of the notice in the post office on July 3d was not destroyed by the reception of tin's information at sundown of Tuesday, July 6th. At that hour the business of the day had closed; the note was in the vault of the bank in New Haven; the notary was at his home in an adjoining town; possession of the note was the privilege of any one required to send notice of its protest, accuracy in description being requisite. At that hour the law allowed the plaintiff to return to his home; it did not require either himself or the notary to leave their respective homes and devote the evening to the labor of notifying the endorser. Practically and in the eye of the law the information came on Wednesday, July 7th, and, if so, placed no obligation upon either the plaintiff or the notary to send a second notice; for the first was well sent upon information acquired by due and legal diligence in inquiry. The deposit of that notice post paid in the New Haven post office, even with its erroneous address, unalterably fixed the liability of the defendant, unless the corrected information came either to the plaintiff or the notary in time to require of one of them a second notice on Tuesday, July 6th; and this did not occur.

It is said in Lambert v. Gheiselin, 9 How., 552, that “when notice is sent after the exercise of due diligence a right of action immediately accrues to the holder, and subsequent information does not render it necessary for the holder to send another.” °

A new'trial is advised.

In this opinion Park, C. J., and Beardsley, J, concurred; Loomis and Granger, Js., dissented as to the effect of the knowledge of the defendant’s place of residence acquired by the plaintiff on the 6th of July.