Brenzer v. Wightman

The opinion of the Court was delivered by Sergeant, J.

There is certainly a discrepancy to be found m the reported cases in this State on the question whether the reasonableness of notice to an endorser of the non-payment of a promissory note or bill of exchange is a question for the court or for *266 the jury; and the same remark may be made on the older eases on this subject in many of the other States of the Union and in England. But the doctrine seems now to be settled as a rule of commercial law, that where the facts are ascertained or undisputed, what shall constitute due diligence in communicating notice of the dishonour of a bill or note is matter of law. Bank of Columbia v. Lawrence, (1 Pet. S. C. 578); Aymer v. Beers, ( 7 Cow. 105 ; 8 Johns. 173 ; 11 Johns. 231 ; 10 Mass. 84 ; 3 Marsh. 264 ; Chitty on Bills 366. And of late this court has adopted the same principle, considering it of the first importance that the commercial law should be everywhere the same. This due-bill, as originally drawn, was not a negotiable instrument. But the payee, by endorsing it payable to order, made it negotiable; after that it became, as between the endorser and the holder, an inland bill of exchange, in which the endorser stood in the light of a new drawer of a bill payable to the order of the endorsee; and the holder, by taking it in this character, took it subject to all the rules that regulate the relation between endorser and endorsee in negotiable instruments. Leidy v. Tammany, ( 9 Watts 353 ). No time of payment being mentioned, it resembled a note payable at sight or on demand. There was no necessity for a demand at any particular time, as there is where a note is made payable at an appointed day; but like such a note endorsed after it becomes due, a reasonable time is allowed to make the demand on the promiser. M’Kenney v. Crawford, ( 8 Serg. & Rawle 354 ). Whether the demand in the case before us was made in a reasonable time, it is unnecessary now to inquire; because, supposing it to have been so, yet when a demand is actually made hy the holder, and there is a refusal by the maker to pay, there is no reason why the rule requiring immediate notice of the non-payment to be sent to the endorser, should not apply in the same manner as it does in the case of the demand and refusal of payment of a note or bill originally made payable at a particular day. In becomes equally important to the endorser to receive immediate notice of the nonpayment, that he may take measures to collect the money from the maker, which he might lose by delay of notice; and the plaintiff, by omitting to give due notice, ought equally to be considered as discharging the endorser, and agreeing to look to the maker. The endorser’s engagement is in both cases conditional, not absolute. According to the settled principles of commercial law, the holder is bound, in case of an inland bill, to forward immediate notice, on the day following the refusal, where there exists no reason to account for the omission to do so. Chitt. Bills 367. It seems Caslow, the holder of this paper after the endorsement, demanded payment from Curran, the maker, in November or December 1837, which was refused. A month or two afterwards he saw Brenzer, and told him the note was unpaid. No circumstance appears at the time of the endorsement or since that dispenses *267 with the necessity which the law imposes of giving due notice to the endorser. Supposing, then, that the notice actually given by Caslow was sufficiently precise to constitute legal notice, yet in point of time we are of opinion i.t was too late, and that the court ought to have instructed the jury, as requested by the defendant, that the defendant did not receive due notice of the non-payment of the note, and was not therefore liable upon it as endorser.

Judgment reversed, and venire de novo awarded.