21 F. Cas. 1098 | U.S. Circuit Court for the District of Massachusetts | 1843
stated to the jury, on this point, that by law it was essential, under the circumstances, to charge Hanriek, that the letter should have been put into the post-office at New York on Monday, early enough to have gone by the southern mail of that day; and if the plaintiffs, or their agents, were guilty of negligence in not putting it into the post-office in time to go by the southern mail of that day, the defendant was discharged from his liability as in-dorser. He added, that the onus probandi of due notice to Hanriek was upon the plaintiffs; and if the jury were not satisfied, beyond a reasonable doubt, that the notice was not duly given, that doubt would justify a verdict for the defendant. And after commenting upon the evidence, he left the point with this direction to the jury.
Another point made in the defence was, that by subsequent arrangements made between the bank and the other parties to the note, except Hanriek. and without his consent, a prolonged time had been given to those parties for the payment of the debt due on the note; and thereby he was discharged therefrom. As to this point, it appeared in evidence, that after the note was dishonored, Lawrence (the indorser) went to Montgomery, Alabama, with the view of arranging the matter, partly for the bank, and partly for his own protection. He there saw Hooker and Hanriek, who admitted, that they had received notice of the dishonor; and he tried to prevail upon them to renew the paper; Hooker was willing and consented to make new paper; Hanriek refused to have any thing to do with it, saying that he would not assume any further responsibilities; and he refused to indorse any new paper. Afterwards, by arrangements between Lawrence, and Hooker, and Kelly, three bills of exchange were drawn; two were drawn by Kelly and accepted by Hooker, and one was drawn by Hooker, and accepted by Kelly. All the bills were drawn payable at Mobile, Alabama; one dated Sept. 28, 1836, payable at seventy days, for $1,879.50; one of the same date, payable at ninety days, for $1,890; one of the same date, payable at one hundred and twenty days, for $1,950.50; in all $5,720. Lawrence was on all the drafts as indorser; and they were by him procured to be discounted at the bank, on the 11th of October, 1836, the bank deducting five per cent as the rate of exchange on Mobile, and interest for the time the bills had' to run. The balance was then carried to the credit of Lawrence on the books of the bank. Lawrence on the same day (the 11th of October), drew a check on the bank for $5,291.67 (the amount due on the note); and the cheek was, “Pay James G. Kelly’s note.” On the same day, there was an entry made in the bank books, under the head of “Notes, When Paid,” “Oct. 11, paid,” against Kelly’s note. Testimony was given by the cashier of the bank and by Lawrence, that these bills were discounted at the bank with an express agreement, that the note of Kelly should refnain' collateral security for the payment of the bills at maturity, in order to hold Hanriek upon his indorsement on the note. On the other hand. Kelly in his testimony expressly stated, that the bills were drawn, “according to his best knowledge and belief, for the purpose of renewing the note,” and were negotiated at the bank; but he, Kelly, had no knowledge of the terms of the negotiation. The whole evidence upon this point also was left to the jury.
STORY, Circuit Justice, in summing up the case, said: I shall leave the evidence upon this point also for the consideration of the jury, as it seems to me very difficult to reconcile some of the admitted facts with some of the statements made by the cashier of the bank and Lawrence. It is clear, that Lawrence, in procuring these bills, acted as the agent of the bank, as well as for himself,
Verdict for the defendant.
