Union Bank v. Grimshaw

15 La. 321 | La. | 1840

Morphy, J.,

delivered the opinion of the court.

The defendant is sued on two bills of exchange, drawn in favor of the plaintiff, on N. Berthoud, of New-York, accepted by the latter, but protested for want of payment, at maturity. The defence set up is, that due notice has not been given to the drawer. Plaintiffs obtained a judgment, from which this appeal has been taken.

To establish the fact of notice, to the defendant, interrogaries on facts and articles were put to him. He stated that he had received no notice of the dishonor of his drafts, except that contained in two letters received from the acceptor, Berthoud, which he annexed to his answers. These letters are dated on 33 an3 0f May, 1837, at which periods the drafts respectively fall due. Berihoud writes in substance, that he could not pay the bills, and that they must inevitably go back protested.

This notice is objected to on two grounds, to wit:

1. That it should have come from the holder.

2. That it was premature.

In our examination of this case, we have been materially assisted by the able and elaborate briefs handed to us by the counsel on both sides.

I. In support of his first objection, the counsel for defendant has relied on several cases to be found in the English books ; we have examined them, and find that the point before us was directly made only in two of the cases cited ; and it was held in them that notice should come from the holder. 1 Term Reports, 167, Tindal vs. Brown; ex parte Barclay, 7 Vesey, 597. But this doctrine was overruled by Lord Kenyon, in Shaw vs. Craft, (Chitty on Bills, 528.) It was proved that a message was left at the house of the drawer by the acceptor, stating that the bill had been dishonored. Lord Kenyon said: “that it made no difference who apprised the drawer, since the object of the notice was that the drawer might have his recourse against the acceptor. We have been referred also to the case of Stanton vs. Blossom, to be found in 14th Massachusetts Reports, 116. It determines only that a drawekwho has not accepted is not a party to a bill, and that notice from him is in no degree better than notice from any other stranger; and that notice must come from the holder or some one authorized by him or from one liable as endorser. But in this case the drawe\¡ had become a party to the bills by his acceptance, and was primarily bound.for their payment. The case of Rosher vs. Kievan, in 4th Campbell, has much analogy to the present. It was proved that on the day the bill became due, the acceptor wrote to the defendant that he had not been able to pay the bill, and that it was in the hands of the plaintiff. Lord Ellenborough held this to be sufficient notice. It is difficult to perceive why it should not be so considered; notice to the drawer by any party implies that the holder looks to him and secures to him all the benefit he could derive from a direct notice from the holder himself; any agent having possession of the bill may give the notice, and it need not state at whose request it was given, nor who was the owner of the bill.

The law is well settled that notice of the nonpayment or dishonor of a bill given to the drawer by the acceptor, or any of the parties to it, is sufficient, and enurestothe benefit of all the other parties.

From a careful review of all the authorities cited by both counsel, we take the law on this subject to .be now well settled, that notice from any person who is a party to the bill, sufficient and enures to the benefit of all the other parties. 3 Kent’s Commentaries, 107; Chitty on Bills, 527; Bailey, 249; 2 Campbell’s Reports, 373, Jameson vs. Swinton; 1 Starkie, 34, Wilson vs. Swabey; 3 Wendell, 173, Chamoine vs. Fowler; 7 Bingham, 530, Salarte vs. Palmer. If regard be had to the reason of the rule requiring notice, it is not easy to perceive the defendant’s right to complain of that given to him in this case. From the correspondence between Berthoud and the defendant, and that between the latter and plaintiffs, it would appear that Berthoud was entrusted with collecting notes and business paper belonging to the defendants in New-York, and applying them to the payment of these drafts; having entirely failed in his collections in consequence of the extraordinary pressure then prevailing in that place, Berthoud advises defendant to make arrangements with the plaintiffs, and get from them time enough to enable him to make his collections; and we find defendant treating accordingly with the plaintiffs, and craving their indulgence as their acknowledged debtor. Under such circumstances, defendant had no step to take against the acceptor, to secure himself; but even if he had, the notice from Berthoud enabled him to act in the same manner as if it had come from the holders themselves.

2. But it is further objected, that the notice, admitting it to have been properly given by the acceptor, was premature, because the latter had the whole of the days on which he gave notice, to pay the bills. It does not appear at what time of the day the letters communicating notice were put in the post-office; the letter of the 3d of May, forwarded by 'the express mail, would seem to have been written in the afternoon. It begins with these words: “Annexed you have duplicate of what I wrote you this morning, per the common mail.” After speaking of the gloomy state of affairs on that day in Wall-street, it proceeds thus: “I made another attempt to discount paper to pay your draft of twenty-five thousand dollars, due to-day; but I could not succeed ; it will, therefore, be protested.” In the duplicate enclosed in this letter, Berthoud advises the defendant to make arrangements with plaintiffs for all the bills which, he says, must inevitably go back. The letter of the 6 th says: “Your draft of two-thirds of the account of J. R. & Co., for twenty thousand dollars, due this day, must go back.” This very announcement of Berthoud that defendant’s drafts must go back protested, implies very thoroughly that it is in consequence of his default to pay them. There is no question as to the legality of the demand and protest, but the point is made as to the regularity of the notice. Can the defendant complain that it was given the same day the bills were protested1? It has been held, that if a note is presented in the forenoon of the day it becomes due, and payment is refused, notice given the afternoon is good. 3 Campbell, 193, Burridge vs. Manners. It was urged, as in this case, that the notice was too soon, because the maker had the whole day to pay the note; but Lord Ellenborough thought it a sufficient notice; for as soon as the maker refused payment, the note was dishonored. The time of the day at which Berthoud’s letters were written, was a matter of fact to be inferred by the judge a quo, from all the attending circumstances. Of these, the strongest was, perhaps, the defendant’s own correspondence with the bank. The letters of the 3d and 6 th of May were before him ; he might have ascertained, from Berthoud, the exact moment when they were written. And we find him, on the 20th May, 1837, and afterwards, on the 5th and 8th of February, 1838, acknowledging, in the most unqualified manner, his indebtedness to the bank, and craving their indulgence, From these facts, it might well be inferred that defendant had satisfied himself that these letters were written at a proper time to fix responsibility upon him. But, should the correctness of the conclusion arrived at by the judge below on this head be doubted, we think that defendant’s prayer for indulgence, and his repeated promises of payment, amount to a waiver of notice, in case none had been given. In defendant’s first letter to the plaintiffs, after fully acknowledging his obligation to pay his bills, he proposes to renew them at four, six, eight and ten months sight, with interest, under the most solemn assurances of payment. Nine months after, he writes two other letters in the same sense, asking the plaintiffs’ indulgence on paying part, and offering additional security.

Letters -written on the day the bills become due, by the acceptor, and addressed to the drawer,that they must go back protested, is sufficient notice to him. So, if a note or bill is presented in the forenoon of the day it becomes due, and payment is refused, notice given in the afternoon is good. Part payment, or a promise to pay a bill or note, furnish grounds to infer presentment, and notice of the dishonor or non-payment.

It is objected that these propositions of defendant were rejected; that his promises to pay were conditional; and that it is not proved that he had, when he made them, a full knowledge of the laches of the holders by which he was discharged.

The defendant’s propositions, it is true, were not formally accepted, but in consequence of his unqualified acknowledgment of the debt and positive assurances of'payment, the plaintiffs forebore to bring suit until the 22d of February, 1838; thus granting him a delay of nine months, a greater or more advantageous indulgence than he had asked.

It does not appear to us that there is any condition in defendant’s letters; there is a term of payment, but not a condition. They are two things very distinct; the former necessarily presupposing a debt, and the latter not. “A term,” says Pothier, No. 230, on Obligations, “ differs from a condition, inasmuch as a condition suspends the engagement formed by the agreement; whereas.a fem does not suspend the engagement, but merely postpones the execution of it.” Bailey on Bills, 498, and Notes, states the law on this subject to be, that a part payment without any objection being made for want of notice, or a promise to pay, famish grounds from which a jury may infer presentment, notice and payment; that an agreement with a prior endorser to pay the bill by instalments is evidence in favor of a subsequent endorsee, that the party agreeing to pay these instalments, had received due notice of the dishonor. Chief Justice Abbott, in deciding the case which settled the doctrine, said “had the defendant been discharged by want of notice, he would have insisted on his discharge; he would not have agreed to pay the bill.”

So, where the defendant, as drawer of bills, after being advised by letter from the accept- or, of their dishonor, acknowledged the debt, and promised to pay the holder of the bills by instalments on short time, it must he viewed either as an admission that the notices were good,or a waiver of them.

As to the knowledge in defendant of the want of due diligence on the part of the plaintiffs, we think with the judge below that when he made his communications to the bank, he was fully apprised of the irregularity or defect, if any there was, in the notices he had received. According to his declaration under oath to the interrogatories propounded by plaintiffs, he had no other notice than those contained in the letters of Berthoud; and it is in evidence that those letters were before him when he made his first proposition to the plaintiffs. Defendant’s acknowledgment of the debt, and his promise to pay it, must then be viewed either as an admission that the notices were good, or as a waiver of them, which his sense of the high moral obligation he was under to return the forty-five thousand dollars, received from plaintiffs, prompted him to makel

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.