A promissory, note was made at Georgetown, payable at the Bank
of Columbia in that town, the defendant, the endorser of the note
living in the County of Alexandria within the District of Columbia,
and having what was alleged to be a place of business in the City
of Washington, and the notice of the nonpayment of the note,
enclosed in a letter and superscribed with his name, was put into
the post office at Georgetown addressed to him at that place.
Held that this notice was sufficient.
In cases where the party entitled to notice resides in the
country, unless notice sent by the mail is sufficient, a special
messenger must be employed for the purpose of sending it; but this
case is not one which required such a duty.
If the defendant had a place of business in the City of
Washington, and the notice served there would be good, yet it by no
means follows that service at his place of residence in another
place would not be equally good. Parties may be and frequently are
so situate that notice may well be given at either of several
places.
That is not properly a place of business in the commercial
understanding of the terms which has no public notoriety as such,
no open or public business carried on at it by the party, but only
occasional employment by him there two or three times a week in a
house occupied by another person, the party only engaged in
settling up his old business.
The general rule is that the party whose duty it is to give
notice of the dishonor of a bill or note is bound to use due
diligence in communicating the same. But it is not required of him
to see that the notice is brought home to the party. He may employ
the usual and ordinary modes of conveyance, and whether the notice
reaches the party or not, the holder has done all that the law
requires of him.
It seems to be well settled that when the facts are ascertained
and undisputed, what shall constitute due diligence is a question
of law.
The rules relative to diligence ought to be reasonable and
founded in general convenience, and with a view to clog as little
as possible, consistently with the safety of the parties, the
circulation of paper of this description.
When a person has a dwelling house, and a counting room in the
same city or town, a notice sent to either place is sufficient; if
parties live in different post towns, notice through the post
office is sufficient. Notice, to a party living at another place
than the holder, sent by mail to the nearest post office, is good
under common circumstances, and in such cases where notice is sent
by mail, it is distance alone, or the usual course of receiving
letters, which must determine the sufficiency of the notice.
Some countenance has lately been given in England to the
practice of sending a notice by a special messenger in
extraordinary cases by allowing the holder to recover of the
endorser the expenses of serving the notice in this manner. The
holder is not bound to use the mail for the purpose of sending the
notice. He
may employ a special messenger if he pleases,
but it has not been decided that he
must. To compel the
holder to the expense of a special messenger would be
unreasonable.
Page 26 U. S. 579
The plaintiffs in error instituted a suit on a promissory note
against the defendant in error, who was the endorser thereon, and
which was discounted at the Bank of Columbia and protested for
nonpayment. The note was dated at Georgetown, where the banking
house of the plaintiff at that time was located, and was payable at
the Bank of Columbia. The evidence on the part of the plaintiffs
established all the facts relative to the note which were proper to
be proved except the notice of nonpayment to the defendant, the
endorser, and the bill of exceptions tendered by the plaintiffs
presented the evidence at length, upon which the question arose
whether due notice of the dishonor of the note had been given and
due diligence had been used by the plaintiffs to convey such notice
to the defendants.
The opinion of the Court as delivered by MR. JUSTICE THOMPSON
contains a full exhibition of all the evidence from which the
conclusions of the County were drawn.
Page 26 U. S. 580
MR. JUSTICE THOMPSON delivered the opinion of the Court.
Page 26 U. S. 581
The defendant was sued as endorser of a promissory note for
$5,000, made by Joseph Mulligan, bearing date 15 July, 1819, and
payable sixty days after date at the Bank of Columbia. The making
and endorsing the note and the demand of payment were duly proved,
and the only question upon the trial was touching the manner in
which notice of nonpayment was given to the endorser, no objection
being made to the sufficiency of the notice in point of time.
The material facts before the court upon this part of the case
as shown by the bill of exceptions were that the banking house of
the plaintiffs was in Georgetown, at which place the note appears
to be dated. That sometime before the note fell due, the defendant
had lived in the City of Washington and carried on the business of
a morocco leather dresser, keeping a shop and living in a house of
his own in the said city. That about the year 1818, he sold his
shop and stock in trade and relinquished his business, and removed
with his family to a farm in Alexandria County, within the District
of Columbia and about two or three miles from Georgetown. That the
Georgetown post office was the nearest post office to his place of
residence and the one at which he usually received his letters.
The notice of nonpayment was put into the post office at
Georgetown, addressed to the defendant at that place. It was proved
on the part of the defendant that at the time of his removal into
the country and from that time until after the note in question
fell due, he continued to be the owner of the house in Washington
where he formerly lived and which was occupied by his
sister-in-law, Mrs. Harbaugh. That he came frequently and regularly
every week, and as often as two or three times a week, to this
house, where he was employed in winding up his former business and
settling his accounts, and where he kept his books of account, and
where his bank notices, such as were usually served by the runner
of the bank on parties who were to pay notes, were sometimes left,
and sometimes at a shop opposite to his house, and where also his
newspapers and foreign letters were left. That his coming to town
and so employing himself was generally known to persons having
business with him. That his residence in the country was known to
the cashier of the bank. That there was a regular daily mail from
Georgetown to the City of Washington, and that the defendant's
house was situated in Washington, less than a quarter of a mile
from Georgetown.
There was also some evidence given on the part of the plaintiffs
tending to show that the usage of the bank in serving notices in
similar cases was conformably to the one here pursued, and that the
defendant was apprised of such usage. But
Page 26 U. S. 582
that testimony may be laid out of view, as this Court does not
found its opinion in any measure upon that part of the case. Upon
this evidence, the plaintiffs prayed the court to instruct the jury
that it was not incumbent on them to have left the notice of the
nonpayment of the note at the house occupied by Mrs. Harbaugh, as
stated in the evidence, but that it was sufficient under the
circumstances stated to leave the notice at the post office in
Georgetown, which instructions the court refused to give, but
instructed the jury that its verdict must be governed according to
its opinion and finding on the subject of usage which had been
given in evidence.
The jury found a verdict for the defendant.
From this statement of the case it appears that the note was
made at Georgetown, payable at the Bank of Columbia in that town.
That the defendant, when he endorsed the note, lived in the County
of Alexandria, within the District of Columbia, and having what is
alleged to have been a place of business in the City of Washington,
and the notice of nonpayment was put into the Georgetown post
office addressed to the defendant at that place, by which it is
understood that the notice was either enclosed in a letter or the
notice itself sealed and superscribed with the name of the
defendant, with the direction "Georgetown" upon it, and whether
this notice is sufficient is the question to be decided.
If it should be admitted that the defendant had what is usually
called a place of business in the City of Washington, and that
notice served there would have been good, it by no means follows
that service at his place of residence, in a different place, would
not be equally good. Parties may be and frequently are so situated
that notice may well be given at either of several places. But the
evidence does not show that the defendant had a place of business
in the City of Washington according to the usual commercial
understanding of a place of business. There was no public notoriety
of any description given to it as such. No open or public business
of any kind carried on, but merely occasional employment there, two
or three times a week, in a house occupied by another person, and
the defendant only engaged in settling up his old business. In this
view of the case, the inquiry is narrowed down to the single point
whether notice through the post office at George town was good, the
defendant residing in the country two or three miles distant from
that place in the County of Alexandria.
The general rule is that the party whose duty it is to give
notice in such cases is bound to use due diligence in communicating
such notice. But it is not required of him to see that the notice
is brought home to the party. He may employ the
Page 26 U. S. 583
usual and ordinary mode of conveyance, and whether the notice
reaches the party or not, the holder has done all that the law
requires of him.
It seems at this day to be well settled that when the facts are
ascertained and undisputed, what shall constitute due diligence is
a question of law. This is certainly best calculated to have fixed
on uniform rules on the subject, and is highly important for the
safety of holders of commercial paper.
And these rules ought to be reasonable and founded in general
convenience, and with a view to clog as little as possible,
consistently with the safety of parties, the circulation of paper
of this description, and the rules which have been settled on this
subject have had in view these objects. Thus, when a party entitled
to notice has in the same city or town a dwelling house and
counting house or place of business within the compact part of such
city or town, a notice delivered at either place is sufficient, and
if his dwelling and place of business be within the district of a
letter carrier, a letter containing such notice addressed to the
party and left at the post office would also be sufficient. All
these are usual and ordinary modes of communication and such as
afford reasonable ground for presuming that the notice will be
brought home to the party without unreasonable delay. So when the
holder and endorser live in different post towns, notice sent by
the mail is sufficient whether it reaches the endorser or not. And
this for the same reason, that the mail being a usual channel of
communication, notice sent by it is evidence of due diligence. And
for the sake of general convenience, it has been found necessary to
enlarge this rule. And it is accordingly held that when the party
to be affected by the notice resides in a different place from the
holder, the notice may be sent by the mail to the post office
nearest to the party entitled to such notice. It has not been
thought advisable, nor is it believed that it would comport with
practical convenience, to fix any precise distance from the post
office within which the party must reside in order to make this a
good service of the notice. Nor would we be understood as laying it
down as a universal rule that the notice must be sent to the post
office nearest to the residence of the party to whom it is
addressed. If he was in the habit of receiving his letters through
a more distant post office and that circumstance was known to the
holder or party giving the notice, that might be the more proper
channel of communication, because he would be most likely to
receive it in that way, and it would be the ordinary mode of
communicating information to him, and therefore evidence of due
diligence.
In cases of this description, where notice is sent by mail to a
party living in the country, it is distance alone or the usual
Page 26 U. S. 584
course of receiving letters which must determine the sufficiency
of the notice. The residence of the defendant therefore being in
the County of Alexandria cannot affect the question. It was in
proof that the post office in Georgetown was the one nearest his
residence, and only two or three miles distant, and through which
he usually received his letters. The letter containing the notice,
it is true, was directed to him at Georgetown. But there is nothing
showing that this occasioned any mistake or misapprehension with
respect to the person intended, or any delay in receiving the
notice. And as the letter was there to be delivered to the
defendant, and not to be forwarded to any other post office, the
address was unimportant, and could mislead no one.
No cases have fallen under the notice of the Court which have
suggested any limits to the distance from the post office within
which a party must reside in order to make the service of the
notice in this manner good. Cases however, have occurred where the
distance was much greater than in the one now before the Court and
the notice held sufficient. 16 John. 218. In cases where the party
entitled to notice resides in the country, unless notice sent by
mail is sufficient, a special messenger must be employed for the
purpose of serving it. And we think that the present case is
clearly one which does not impose upon the plaintiffs such duty. We
do not mean to say no such cases can arise, but they will seldom,
if ever, occur, and at all events such a course ought not to be
required of a holder except under very special circumstances. Some
countenance has lately been given to this practice in England in
extraordinary cases by allowing the holder to recover of the
endorser the expenses of serving notice by a special messenger. The
case of
Pearson v. Crallan, 2 Smith 404. Chitty, 222 note,
is one of this description. But in that case the court did not say
that it was necessary to send a special messenger, and it was left
to the jury to decide whether it was done wantonly or not. The
holder is not bound to use the mail for the purpose of sending
notice. He
may employ a special messenger if he pleases,
but no case has been found where the English courts have directly
decided that he
must. To compel the holder to incur such
expense would be unreasonable, and the policy of adopting a rule
that will throw such an increased charge upon commercial paper on
the party bound to pay is at least very questionable.
We are accordingly of opinion that the notice of nonpayment was
duly served upon the defendant, and that the court erred in
refusing so to instruct the jury.
Judgment reversed and a venire facias de novo
awarded.
