The President, Directors, & Co. v. Hammatt

9 Mass. 159 | Mass. | 1812

Sewall, J.

This action, and the action by the same plaintiffs against Page, are upon one and the same note. And as to evidence of a demand and notice, the same observations apply. But whether a demand was made, and notice was given, are questions of fact, for the jury to determine upon the evidence and testimony adduced at the trial. These, as reported, prove a number of cir cumstances, from which, taken together, the jury may lawfully, and perhaps will be induced to presume the requisite demand and notice, which are to be proved in cases of this kind, to enable the holder of a note to recover against an endorser. The confidence reposed in the director of the bank coming from Bath, by the parties living there, in their dealings with the bank, and Mr. Tollman’s attendance on the day when notice was to be given, are strong circumstances, from which, perhaps, notice may be inferred; but* we think the inference, as a presumption of one fact from another, or from a number of facts and circumstances proved, is to be made by the jury. The absence of Hammatt is not a material circumstance. It is enough, if a letter was left, or might have gone by the mail to Hammatt’s usual residence or place of business ; nor, as the agreement and usage were respecting endorsers living out of Wiscasset, is it at all necessary to prove an actual delivery of a letter to Hammatt, or at his house. It is sufficient if a letter was sent in the ordinary course of the mail from Wiscasset to Bath, ^(a)

New trial granted.

(a) [ Weld vs. Gorham, 10 Mass. Rep. 366. — Blanchard vs. Hilliard, 11 Mass. Rep. 85. —Jones vs. Fales, 4 Mass. Rep. 245, and note to that case. — Widgery vs. Munroe & Al., 6 Mass. Rep. 449. — Smith vs. Whiting, 12 Mass. Rep. 6.— Odiorne & Al. vs. Marcy Al, 13 Mass. Rep. 181. — Pierce vs. Butler, 14 Mass. Rep. 303. — City Bank vs. Cutter & Al. 3 Pick. 414. — Loring vs. Gurney, 3 Pick. 15.— Tippetts vs. Sumner, 19 Pick. 166. —Vide Rogers vs. Mechanics Ins. Co., 1 Story, 608. — Donnell & Co. vs Columbian Ins. Co., 2 Sumn. 377. — The Reeside, 2 Sumn. 569, 570. — Ed.]