Manchester Bank v. Fellows

Eastman, J.

This suit was brought by the Manchester bank, as indorsees, against the defendant as indorser, of a draft for 1,200; and the questions raised by the case are, whether due and legal notice of the non-payment of the draft has been given to the defendant, so as to charge him as indorser, and whether the suit was not prematurely commenced.

Preliminary to these questions, however, which go to the merits of the action, another question is raised, which is, that no evidence was offered to show that the action was commenced by any authority from the officers of the bank, or that they have ever assented to the suit.

Formerly, attorneys were required to be appointed by warrant, and to file their powers in court; but that practice has long since been disused, and a mere parol retainer is sufficient. And when an action is commenced by a regular responsible attorney, the presumption is that it is done by due authority of the plaintiff. It is not necessary to show authority, whether the suit be by an individual or a corporation, in order to the progress of the suit, unless it is called for by the defendant. Even when called for, the declaration by the attorney that he was employed by the plaintiff, or his agent, who, he believed, was duly authorized to employ him, will ordinarily be deemed sufficient. A de fendant may, however, show that the suit is prosecuted without the consent of the plaintiff on the record, and if it shall appear that he is the real and not the nominal plaintiff, the action will be dismissed for the want of a plaintiff in court. If he is the nominal plaintiff only, the suit would of course proceed.

*308 The fact, then, that it was not shown upon the trial that the suit was commenced by the authority of the bank, or that the officers assented to it, cannot avail. It was not necessary to show it until called for, and no call of the kind appears to have been made.

We come now to the consideration of the fundamental questions raised by the case. And first, was the notice upon the defendant of the non-payment of the draft sufficient to charge him ?

As a general rule, in order to charge an indorser of a draft, acceptance, bill of exchange, or promissory .note, a demand upon the maker or acceptor, at the maturity of the paper, must be shown, and due notice upon the indorser. To this rule there are some exceptions, growing out of the conduct and circumstances of the parties, but which need not be stated at this time, as the case before us does not require it.

This draft was dated at Boston, August 20th, 1851, and was payable to the order of the defendant in thirty days. The last day of grace was, consequently, the 22d day of September, the day of the date being excluded in the computation. On that day, a notary public, at Boston, duly presented the draft to Kimball, the drawee, by whom it had been accepted, for payment; and payment being refused, he, on the same day, gave verbal notice of the non-payment to the drawers, Montgomery & Co., who also resided in Boston, and likewise put into the post office a written notice thereof in due form, directed to the cashier of this bank, the plaintiffs, by whom the draft had been indorsed, after the defendant, and enclosed a similar notice for the defendant. These were received by the cashier on the next day, the 23d, and he, on the same day, directed the notice enclosed for the defendant, to him, and put it into the post office in Manchester, at which the defendant received his letters, though residing about four miles therefrom, in Manchester. *309 Was this a legal notice to Fellows, the defendant, of the non-payment of the bill?

The draft had been indorsed by Fellows, who was the payee, to the plaintiffs, and by them also indorsed, it does not appear to whom, but probably to some bank in Boston, for the purposes of collection ; or the money may have been advanced to the plaintiffs at Boston. The bill was made and held at Boston, and payment was there regularly demanded by the drawee, and notice of non-payment given to the drawers. This being done, the legal course then to be taken by the notary — the holder and indorsers residing in different towns — -was to send notice of the non-payment through the mail, to the indorsers. Probably the notary was not acquainted with the residence of Fellows, and so made out a notice to the bank, and likewise one for Fellows, and sent them both to the cashier of the bank. This rvas done on the 22d, the third day of grace, after demand and refusal, and, according to the authorities was,, so far as the bank was concerned, the proper time and manner in which to give the notice so as to charge the bank.

Upon the dishonor of a bill or note, where the parties to it reside in different places, it is sufficient if the holder puts a notice to-the indorser into the post office, in season to be transmitted by the mail of the next day; and each indorser may, in like manner, transmit a notice to his prior indorser, by the mail of the day succeeding that on which he receives notice. But if the party receiving notice cannot, by the exercise of reasonable diligence, forward notice to a prior party by the mail of the day following, it will be sufficient if sent by the next mail. Carter v. Burley, 9 N. H. Rep. 558 ; Lenox v. Roberts, 2 Wheat. 273 ; Robinson v. Ames, 20 Johns. 146 ; Talbot v. Clark, 8 Pick. 84 ; Hartford Bank v. Stedman, 3 Conn. Rep. 495 ; Ohio Life and Trust Com pany v, Mc Cagne, 18 Ohio Rep. 54 .

And the holder may, if he pleases, forward a notice on the day of the dishonor; and any prior party receiving no *310 tice, may transmit a notice on the day he receives one; and should any party do so, it will not enlarge the time allowed to any other party. Carter v. Burley, 9 N. H. Rep. 558 ; Smith v. Little, 10 N. H. Rep. 526 ; Bank of Alexandria v. Swann, 9 Peters 33 ; Bailey on Bills 171; Burbridge v. Manners, 3 Camp. 193; Greeley v. Thurston, 4 Greenl. 479; Shedd v. Brett, 1 Pick. 401 ; 6 Wheat. Rep. 102 .

Where notes and bills are payable at a bank, the common practice, with many, is to make a demand on the last day of grace, and if payment is not made, and the parties reside in the same place with- the bank, to notify the indorsers after bank hours, either personally or by leaving a notice at their residence or place of business, and if the indorsers reside in other towns, to deposit a notice after bank hours, in the post office, duly directed; and this, we think, is the proper rule upon the subject, where the paper is payable at a bank. The rule, where no particular place of payment is fixed by the bill, has been sufficiently indicated.

The notice, then, to these plaintiffs was legally given, so as to bind them to the holder, if the draft had been cashed for the plaintiffs; but was it sufficient to charge the defendant ? According to the authorities which we have cited, and which we regard as good law, the notice was no doubt deposited in the post office in Boston in time, but the authorities are not so numerous or distinct in regard to the correct rule to be adopted after the notice reached Manchester.

Where the residence of the holder and that of the party to be notified is in the same town or city, it is not sufficient to put a notice into the post office ; personal notice must be given, or the notice must be left at his residence or place of business. Green v. Darling, 3 Shepl. 141; Smedes v. Utica Bank, 20 Johns. 372 ; Shepherd v. Hall, 1 Conn. Rep. 429 ; Bowling v. Harrison, 6 Howard’s U. S. Rep. 248; Hyslop v. Tones, 3 McLean 96 ; Foster v. Sineath, 2 Richardson 338.

But if it should be shown that a notice, put into the post *311 office where the parties were so situated, was actually received in due time, it would seem to be sufficient. Hyslop v. Jones, 3 McLean 96 ; Foster v. Sineath, 2 Richardson 338; Hill v. Norvell, 3 McLean 383 .

It becomes important, then, to determine who is the holder of the bill at the time notice is given; since if the holder and party to be notified are residents of different towns, it may be given through the mail; but if residents of the same town, it should be done, as. we have seen, by personal notice, or by being left at the residence or place of business of the party.

In Bowling v. Harrison, 6 Howard’s U. S. Rep. 248, it was held that the bank at which a note is made payable, and holding the note for collection, and the notary, having it as agent of the owner, for the purpose of making demand and protest, are “ holders ” within the meaning of the rule that where the holder and indorser reside in the same place, personal notice to the indorser of the dishonor of the note, or written notice left at his dwelling-house, is necessary to bind them.

So in Freeman's Bank v. Perkins, 18 Maine Rep. 292 , it was decided that where an indorsed bill is sent to a bank for collection, although the bank has no interest in it, yet, for the purposes of making a demand and of transmitting notices, they are to be considered the real holders.

To the same effect are Mead v. Engs, 5 Cowen 308; Warren v. Gilman, 5 Shepl. 360; Ohio Life and Trust Co. v. Mc Cague, 18 Ohio Rep. 54 . And we see no reason to question the correctness of these decisions. The object of notice is to inform the indorser that the bill has been dishonored, and that he must govern himself accordingly. The bill may have passed through several hands, and it is not material for the party to know who owns it, but that it has not been paid. It may be necessary to charge several parties or indorsers, and the most practicable mode appears to be that the notices shall come from the last holder, what *312 ever may be the object of its being with him, whether as owner or agent, for the purpose of giving the notices.

The draft in suit was, therefore, held in Boston, and the. notice to the defendant would properly come to him from that city through the mail. Still, the question recurs, could it be legally sent by the notary to the cashier of the plaintiffs’ bank, in the manner in which it was, and be by him directed and put into the post office, so as to charge the defendant ? If it were the plaintiffs who were giving the notice, at Manchester, (as we have seen they might have done after notice to them,) it is clear that it could not be so done, because they reside in the same city. But that was not the case. It was the holder at Boston who was giving the notice, and he undoubtedly directed it according to his best information. The cashier, at Manchester, on taking the notice from the office, made no alteration in it. He simply completed the direction, and re-placed it in the post office. The notice, was thus ready for the defendant in the post office at Manchester, properly directed, at the same time and in the same manner that it would have been had the direction been completed at Boston. And we think this was sufficient. The notice came from the notary at Boston, and whatever the cashier did was done as*tbe agent of the notary.

The case of Warren v. Gilman, 5 Shepl. 360, appears to have been very near, if not exactly, parallel in its facts with the one before us, and the notice was there held to be sufficient. In that case a bill was indorsed to a bank in Bangor, and by that bank indorsed and transmitted to a bank in Boston for collection; and, by direction of the latter bank was duly presented there for payment by a notary, and notices thereof and of non-payment were immediately made out by him to all the prior parties, and transmitted by the first mail to the cashier of the Bangor bank, who took them from the post office on the morning of their arrival, and directed one to the indorser, then a resident of that city, and *313 immediately replaced it in the post office. It was held, that ás the notice came from the notary in Boston, this mode of transmitting it was sufficient.

It would, perhaps, be difficult to distinguish that case from this. The learned Chief Justice Weston, in the course of the opinion delivered in that case, remarked, that the notice coming from the notary, the post office was a proper channel of communication; and that “ whatever strictness of construction, on the question of notice, may have obtained upon some points, it appears to us that the notice to the defendant is sufficiently made out, by proving, that having been prepared and duly forwarded by the notary, it was ready for him, properly directed, at the post office in Bangor, on the morning of the fifth of August.”

But the other objection to the plaintiffs’ right of recovery, which is, that the suit was prematurely brought, must be sustained.

The general rule with respect to the time allowed for the payment of money when a day certain is appointed, is, that the party bound has till the last moment of the day in which to pay it. Hudson v. Barton, 1 Rol. 189; 3 Bos. & Pul. 602; 1 Saund. 288, n. 17 ; Leftley v. Mills, 4 Term. 173; Randolph v. Cook, 2 Port. 206 ; Osborne v. Moncure, 3 Wend. 170 .

In the two last cases, it was held that the maker of a note cannot be sued on the day on which it becomes due. But a contrary doctrine is recognized in other cases, where it is held that a suit may be instituted against the maker on the third day of grace. Greeley v. Thurston, 4 Greenl. 479; Wilson v. Williman, 1 Nott & McCord, 440; Leftley v. Mills, 4 Term, 170; Chitty on Bills, 285. And the general rule, which prevails in ordinary contracts, in regard to the party’s having the whole day in which to make payment, is said not to exist in its application to negotiable paper. Chitty on Bills, 285.

But whatever difference of opinion may be found to exist *314 among the authorities, we think the true rule to be this, that a party is bound to pay just according to his contract. Now what is the contract of an indorser of a bill of exchange or promissory note ? It is this; that a demand being made upon the acceptor or maker, as the case may be, on the third day of grace, the day pf payment, and upon payment not being made, he will himself pay the bill upon being duly notified of the non-payment. This is his contract; and when it is shown to be broken, an action can be sustained against him, but not before.

The promise of an indorser is only conditional in the first instance. There must be an existing, absolute liability, in order to support an action against him, and that liability is not complete until notice of non-payment is given, or due diligence used to give the notice, which in law amounts to notice. A plaintiff in his writ alleges a demand on the maker, with refusal of payment, and a notice to the indorser that the bill has been dishonored ; and the notice is a material allegation as it respects the indorser, and must be proved. A suit cannot be sustained against him until enough has been done to make him absolutely liable. New England Bank v. Lewis, 2 Pick. 125 ; Green v. Darling, 3 Shepl. 139.

But if a demand is made on the third day of grace, and the acceptor refuses or neglects payment, and legal notice of the demand and refusal is given to the indorser, his liability becomes fixed ; because such is his contract.

We have seen that after the demand is made notice is properly given on the third day of grace. The acceptor contracts to pay on that day, but on being requested refuses to fulfil his contract; and notice may then be immediately given to the indorser of the delinquency. This is all that the contract requires ; and a suit may then be commenced against the indorser.

We have seen, also, that where the holder and indorser reside in the same place, the notice must be personal, or left *315 at the residence or place of business of the indorser. But where they reside in different places, all that is required is, that notice be seasonably deposited in the post office, duly directed. The party is not required to wait till the notice is received. Were this so, a cause of action might never arise, for the notice might never be received. The notice must go at the risk of the indorser, and the time of the reception of the notice must also be at his risk. The duty of the holder is fulfilled when the notice is properly deposited in the post office. A different rule would greatly embarrass all dealings in negotiable paper. Saunderson v. Judge, 2 H. Blk. 509; Parker v. Gordon, 7 East, 385; 4 Term, 170; Chitty on Bills, 285; Shed v. Brett, 1 Pick. 401 ; Flint v. Rogers, 3 Shepl. 67; Greeley v. Thurston, 4 Greenl. 479; New England Bank v. Lewis, 2 Pick. 128 .

As soon, then, as the notice has been given, where the parties reside in the same place, or deposited in the post office, where they reside in different places, after demand duly made and refusal on the third day of grace, a suit may be commenced against the indorser. Shed v. Brett, 1 Pick. 401 ; Greeley v. Thurston, 4 Greenl. 479; New England Bank v. Lewis, 2 Pick. 128 . The plaintiff can then prove all the material allegations in his declaration; and when he does that, he may maintain his suit; but not before.

If the suit is commenced a day after the time that notice is given, or at any future time after notice, the proof is readily made, because where the notice is proved it shows for itself to have been before suit4 but where, as in this ease, the suit is instituted on the day of the notice, no such con» elusion is apparent. The evidence does not show that the notice was given before the. suit was commenced, and the court cannot presume it. And in all such cases the plaintiffs must prove that the demand and notice were before the •suits were brought, otherwise it does not appear that they have a cause of action. New England Bank v. Lewis, 2 Pick. 125 .

*316 The plaintiffs in this case having produced no evidence showing that the notice was put into the post office at Boston before the writ was served, it does not appear that a eause of action existed at the time of the commencement of the suit and the action necessarily fails.

Entertaining these views of the case, as it stands, there must of course be, Judgment on the verdict,