22 Conn. 213 | Conn. | 1852
The defendants first insist, that the averments in this declaration, of a due presentment of the draft in question and notice of its non-payment, must be strictly proved, and that they are not sustained, by proof of the facts set up by the plaintiffs, by way of excuse. Whatever may be the course of authorities elsewhere, it is well settled here, that those allegations are supported by evidence of matter of excuse, or a waiver of demand and notice. Norton v. Lewis, 2 Conn. R., 479, and Camp v. Bates, 11 id., 487, are decisive on this point.
The other and more important question in this case is, whether the plaintiffs are excused for the non-presentment of this draft for payment, on the day when it became due. The last day of grace Being Sunday, it was payable on the preceding Saturday, which was the second day of June, 1849. This question depends on whether the plaintiffs are chargeable with negligence, in not presenting it on that day.
If the agent of the plaintiffs, to whom they sent it, to be forwarded for presentment and collection, and who transacted this business for them, was guilty of such negligence, it is, of course, imputable to the plaintiffs. And it is not important to this question, either that the defendants in fact sustained no damage, by the draft not having been presented for payment, when it fell due, or that it would not have been paid by the acceptor, if it had then been presented. The indorser, on a question of due presentment for payment, is
The question of negligence here presented depends on the inquiry, whether, under the circumstances of this case, the delay of the plaintiffs’ agent, in not forwarding this draft to Philadelphia, until the last' mail left New York for that place, on the day next preceding that on which the draft fell due, constituted a want- of reasonable or due diligence, in regard to its presentment. We say, under the circumstances, because there is. no positive or absolute rulé of law, which determines within what precise time the holder of a bill of exchange must, in all cases whatever, or at all events, avail himself of the authorized mode of transmission adopted in this instance, to forward such paper for presentment. The general principle, established by all the adjudged cases, as well as the approved elementary writers, is, that reasonable diligence in the presentment of a bill for payment, is required of the holder, and that, therefore, if there has been no want of such diligence, he is excused. Story on Bills, ch. 10. Chitty on Bills, ch. 9, 10. Story on Prom. Notes, ch. 7, § 368. Patience v. Townley, 2 Smith’s R., 223, 224.
In applying this principle, the general rule is, that it must be presented for payment, on the very day on which, by law, it becomes due, and that, unless the presentment be so made, it is a fatal objection to any right’ of recovery against the indorser. But, although this is the general rule, it is not an universal one, and prevails only under the qualification, which is really a part of the rule itself, that there is no negligence or want of reasonable diligence, in not making such presentment. The whole rule, therefore, more properly stated, is, that the presentment must be on the day on which the bill becomes due, unless it is not in the power of the holder, by the use of reasonable diligence, so to present it. By the very statement of this rule, as thus fully expressed, it is plain that, on the question, whether the holder is excused on this ground, for not thus presenting it, or, in other
Applying these principles to this case, we are of opinion that the plaintiffs are not chargeable with a want of reasonable diligence.
No fault or impropriety is imputable to them, by reason of their having selected the public mail,’ as the mode of forwarding the draft in question, to the bank in Philadelphia, where it was payable; It is properly conceded by the defendants, that such mode of transmission was in accordance with the general commercial usage and law, in the case of paper of this description. Indeed, it is recommended in the books, as the most proper mode of transmission, as being the least hazardous, and therefore preferable to a special or private conveyance. But,' although the public mail was a legal and proper mode by which to forward this paper, it was their duty to use it in'such á manner, that they should not be chargeable with negligence, or unreasonable delay. If, therefore, they put the draft into the post-office, at so late a period that, by the ordinary course of the mail, it could not, or there was reasonable ground to believe that it would not, reach the place of its destination, in season for its presentment, when due, we have no doubt that there would be, on their part, a want of reasonable diligence, which would exonerate the indorser. On the other hand, to throw the risk of every possible accident, in that mode of forwarding the draft, upon the holder, where there has been no such delay, would' clearly be most inconvenient, unreasonable
The only remaining enquiry is, whether the plaintiffs are chargeable with negligence, for not forwarding the draft in question, by an earlier mail from New York to Philadelphia. It was sent by the usual, legal, and proper mode. It was deposited in the post-office, in season to reach the place where it was payable, before it fell due, by the regular course of the next mail; and there was no reason to believe, that it would not be there duly delivered. It was actually sent by that mail, and, but for the mistake of {he postmaster where it was mailed, in misdirecting the package containing it, would have reached its proper destination, and been received there in season for its presentment, when due. It in fact reached that place, when it should have done; but was carried beyond it, in consequence of that mistake. As that mistake could not be foreseen or apprehended by the plaintiffs, it is not reasonable to require them to take any steps to guard against it. Indeed, they could not have done so, as they had no control or supervision over the postmaster. They had a right to presume, that the latter had
In this opinion the other judges concurred.
Judgment for the plaintiffs.