Notice to the endorser of a promissory note of nonpayment by the
drawers.
C., the endorser of the note, at the time it fell due lived in a
house in Georgetown, except the lower front room, which was
occupied separately, as a store by one of his sons. There was a
separate entrance to the dwelling part of the house through an
alley or passage, apart from the store, which led to the upper
rooms and back buildings and yard of the house. The son of C. who
occupied the store, had a dwelling house separate from the store.
C. was at that time postmaster of Georgetown, and kept the post
office in another part of the town, where he usually transacted his
private business as well as that of his office. C. had no concern
in his son's store, but he was frequently about the door. Until he
took charge of the post office, which was a year before the note
fell due, written communications and notices for him were sometimes
left at the store and were carried by another of his sons, unless
when he forgot it, to him. After C. took possession of the post
office, if notices had been left at the store for C., the bearer of
them would have been directed to take them to the post office or
they would have been delivered to him by his son at the post office
if recollected or if they had been seen when left at the store. The
notary stated that he believed the notice of nonpayment of the note
was left at the store because he thought that he had frequently
notices to give to the defendant, and was in the habit of leaving
them at the store, and he never had been in the dwelling house or
in the passage or alley.
Held that this notice was not
sufficient of nonpayment of the note "to" charge C. with liability
to pay the note.
If notice of the nonpayment of a note, although left at an
improper place, was nevertheless in point of fact received in due
time by the endorser, and so proved or could from the evidence in
the cause be properly presumed by the jury, it is sufficient in
point of law to charge the endorser.
Presumptions from evidence of the existence of particular facts
are in many cases, if not in all, mixed questions of law and fact.
If the evidence be irrelevant to the fact insisted upon or be such
as cannot fairly warrant a jury in presuming it, the court is so
far from being bound to instruct them that it is at liberty to
presume it that it would err in giving such an instruction.
In the circuit court, the plaintiffs, as endorsers of the Bank
of Columbia, instituted this suit against the defendant as endorser
of a promissory note dated "Georgetown, May 6, 1819," for $3,700,
drawn by Daniel Reintzel and payable at
Page 27 U. S. 122
sixty days to the order of the defendant. The note was protested
when at maturity by order of the Bank of Columbia the holders.
The plaintiffs gave in evidence the protest of the note,
stating
"That payment thereof had been duly demanded of the maker on the
third day of grace and refused
and the usual notice of dishonor
left next day at the store of James Corcoran (the son of the
defendant) in Georgetown."
Two written papers were also put in evidence -- one a letter
from Thomas Corcoran the defendant dated at Georgetown, May 8,
1822, and addressed to "O. Krutz, cashier, &c.," saying
"Mr. Rind having called on me on the subject of Mr. Reintzel's
notes, I have no hesitation in saying that I will not take any
advantage of the limitation act for my endorsement on the note of
$3,700, dated 6 May 1819, and the note of $400, dated 27 May, 1819;
the other note I have no knowledge of, and will call at bank to
morrow for some explanation of it."
Also a warrant of attorney in blank, dated December 14, 1824,
authorizing the docketing of suits at the ensuing term for the use
of Bank of the United States, on these notes of Daniel Reintzel,
viz., two of $400 each and one of $3,700, all due in
1819.
This paper was sent to the defendant for his signature, by Mr.
Richard Smith, the cashier of the Bank of the United States, and
the defendant addressed to him the following letter.
"Dear Sir -- If Mr. Reintzel should not be able to satisfy the
bank before court, and it determines to bring suit, I will instruct
and authorize Robert Dunlap, Esq., to docket the case for me.
December 16, 1824. THOS. CORCORAN."
Benjamin F. Mackall, the notary who made the protest, was
examined on the trial and produced his notarial book, in which he
recorded all his protests and in which he had entered the protest
of the note upon which this suit was brought. He stated
"That the demand and notice were made and entered in the book,
and that although he had no recollection in relation to these
notes,
he believed that demand
Page 27 U. S. 123
and the notice thereof were made as stated in the
book;"
that at the time of the demand and notice of the notes, the
defendant lived in a house in Georgetown, except the lower front
room thereof, which was occupied separately, as a store by one
James Corcoran, the son of the defendant. There was a separate
entrance to the dwelling part of the house, occupied by the
defendant, through an alley or passage apart from the store, which
led to the upper rooms, apart from the house, and he believes the
notice of the note was left by him at the store, because he thinks
he frequently had notices to give to the defendant and was in the
habit of leaving them at the store, and he never was in the
dwelling part of the house occupied by the defendant nor in the
passage or alley.
It was also proved that James Corcoran, the son of the
defendant, who occupied the store at the period referred to by the
notary, had a family and a dwelling house apart from the store. The
defendant, at the time of the protest of the note, was postmaster
of Georgetown, and kept the post office in another part of the
town, where he transacted his private business as well as the
business of his office, and had no concern in the store. The
defendant was often at the door and about the door of the store.
Another son of the defendants, a single man, was concerned in the
store; he lived with the defendant in the house until some time in
February, 1819, when he left his father's family, but continued his
connection with the store. It was also proved by James Corcoran
that until 1818, when the defendant took charge of the post office,
written communications and notices for the defendant were sometimes
left at the store or at the dwelling part of the house; sometimes
the persons bringing such notices were directed to take them into
the house and sometimes he took them at the store, and then, unless
he forgot to do so, as he sometimes did, he delivered them to the
defendant. After his father took the post office, if he had known
that such communications or notices had been left at the store, he
would have directed the persons who called with them to take them
to the post office, or, if going there, he would have taken them,
and unless he forgot,
Page 27 U. S. 124
would have delivered them to the defendant; but he had no
recollection of such fact's having occurred. When the defendant
took charge of the post office, that became the place where notices
and communications were usually left and where he transacted his
business, both private and official, as post master and magistrate.
The witness stated that he had no recollection of a notice of the
protest of the note in suit having been left at the store.
The store never was, before or after the defendant took the post
office, his place of business or the place appointed for the
delivery of notices or other communications for the defendant.
The defendant's counsel prayed the court to instruct the jury
that if it found from the evidence that the said notices were left
at the store of the said James Corcoran, occupied by him separately
from the dwelling part of the house occupied by the defendant as
stated in the evidence, the notice is not sufficient to charge the
defendant in this action, and the jury, on the said evidence, ought
to find for the defendant on the first issue, which instruction the
court gave. And the plaintiffs by their counsel prayed the court to
instruct the jury that if it found from the evidence that
notwithstanding the notices were left at the room occupied as a
store by James Corcoran, yet that the said store was the place
where notices for the defendant were generally left, and that the
notices in the case of these notes were duly received by the
defendant, then their being so left at said store does not defeat
the plaintiffs' right to recover, provided the defendant received
said notices in due time. And that their said papers read in
evidence by the plaintiffs and signed and given to the plaintiffs
by the defendant as above stated are competent evidence from which
the jury may infer that the defendant did duly receive the said
notices, which instructions the court refused to give.
The plaintiffs by their counsel excepted to the instruction
given by the court upon the prayer of the defendant and to the
refusal of the court to instruct the jury as required by them, and
the case was brought up upon the bill of exceptions to this
Court.
Page 27 U. S. 128
MR. JUSTICE WASHINGTON delivered the opinion of the Court.
The suit was brought by the plaintiffs in error against the
defendant, as the endorser of a promissory note of Daniel Reintzel
for $3,700, payable 60 days after date, and dated 6 May, 1819. The
only question in the cause turns upon the sufficiency of the notice
to the defendant, the circumstances attending which appear in a
bill of exceptions taken by the plaintiffs to the opinion of the
court. From this it appears that the plaintiffs gave in evidence a
letter from the defendant to the cashier of the Bank of Columbia,
where this note was discounted, bearing date 8 May, 1822, in which
the writer, after mentioning that he had been applied to on the
subject of Reintzel's notes, says,
"I have no hesitation in saying that I will not take any
advantage of the limitation act for my endorsement on the note of
$3,700, dated 6 May, 1819, and the note of $400, dated 27 May,
1819; the other note I have no knowledge of, and will call at the
bank tomorrow for some explanation of it."
These notes having been transferred to the Bank of the United
States, the cashier of that bank, on 14 December, 1824, sent to the
defendant a paper for the signature of himself and Reintzel
containing a general authority to some attorney to docket suits
against them at the next ensuing term of the court in the names of
the president, directors, and company of the Bank of the United
States for the use of that bank and of the United States on three
notes of Daniel Reintzel, two of $400 each and one of $3,700, all
due in 1819. On the back of this note was endorsed the following
address signed by the defendant,
viz.,
"Dear Sir -- If Mr. Reintzel should not be able to satisfy the
bank before the court and they determine to bring suit, I will
instruct and authorize Robert Dunlap to docket the case for me.
December 16, 1824."
The plaintiffs proved by the notary who made the protest of this
note, who produced at the trial his notarial
Page 27 U. S. 129
book, in which he recorded all his protests and in which he had
entered the protest of the note in question and the demand and
notice, that the said demand and notice were made and entered in
the said book and that although he had no recollection in relation
to these, yet he believed the demand and the notice thereof were
made as stated in his said book. He further stated that at the time
of the said demand and notice, the defendant lived in a house in
Georgetown, except the lower front room thereof, which was occupied
separately as a store by James Corcoran, his son. That there was a
separate entrance to the dwelling part of the house, occupied by
the defendant, through an alley or passage apart from the store,
which led to the upper rooms and back building and yard of the
house, and that he believed the notice was left by him at the said
store, because he thought that he had frequently notices to give to
the defendant, and was in the habit of leaving them at the store,
and never was in the dwelling part of the house occupied by the
defendant nor in the passage or alley leading to it.
It was further proved that James Corcoran, who occupied the
store at the time spoken of, had a family and a dwelling house
apart from his store, and that the defendant was then postmaster of
Georgetown, and kept the post office in another part of the town,
where he commonly transacted his private business as well as that
of his office, and had no concern in his son's store, but that he
was often at the door and about the door of the store; that Thomas,
another son of the defendant, was concerned with his brother in the
store and was an active partner, attending in the store to the
business thereof, but that he was a single man, and lived with the
defendant in the house aforesaid until February, 1819, after which
he ceased to live in his father's family, but continued his concern
and attention in the store.
It was further proved by the before mentioned James Corcoran
that until the defendant took charge of the post office, which was
in the year 1818, written communications and notices for the
defendant were sometimes left at the before mentioned store or at
the dwelling part of the house;
Page 27 U. S. 130
that the witness sometimes directed the persons bringing such
notices to take them into the house, and sometimes he took them at
the store, and then, unless when he forgot to do so, as he
sometimes did, he delivered them to the defendant; that after his
father took the post office, the witness, if such notices or
communications had been left at his store in the presence of a
witness, would have directed the bearer of them to take them to the
post office or, if he were going there, would have taken them
himself, and that if he had done so, he would, unless he forgot it,
have delivered them to the defendant; but he had no recollection of
any such fact's having occurred. That when the defendant took
charge of the post office, that became the place where his notices,
communications, &c., were usually left and where he transacted
his business, both private and official, as post master and
magistrate. The witness had no recollection of ever having seen or
known of any notices being left at his store of the protest of the
notes now in suit. That the store never was, before or after the
defendant took the post office, his place of business or the place
appointed for the delivery of notices or other communications for
the defendant.
After the above evidence was given, the defendant's counsel
prayed the court to instruct the jury that if it found from the
evidence that the said notices were left at the store of James
Corcoran, occupied by him separately from the dwelling part of the
house, occupied by the defendant as stated in the evidence, the
notice was not sufficient to charge the defendant in this action,
and that the jury, on the said evidence, ought to find for the
defendant on the first issue, which instruction the court gave.
The plaintiffs then prayed the court to instruct the jury that
if it found from the evidence that notwithstanding the notices were
left at the room occupied as a store by James Corcoran, yet that
the said store was the place where notices for the defendant were
generally left, and that the notices in regard to these notes were
duly received by the defendant, then their being so left at the
said store does not defeat the plaintiffs' right to recover,
provided the defendant received the said notices in due time, and
that their said
Page 27 U. S. 131
papers read in evidence by the plaintiffs and signed and given
to them by the defendant as above stated, are competent evidence
from which the jury may infer that the defendant did duly receive
such notices. This instruction the court refused to give, to which
refusal, as also to the giving of the instruction, prayed by the
defendant's counsel, the exception was taken by the counsel for the
plaintiffs.
The only question which the case presents is whether such notice
was given of the nonpayment of the note on which this suit was
brought, as the law requires to charge an endorser. It is not
pretended that it was given to the defendant personally, either
verbally or in writing, or that a written notice was left at his
dwelling house or place of business, or that the holders of the
note were prevented from giving the notice at any time by the
absence or fault of the defendant. His place of residence and the
way by which access to it was to be gained was known to the notary,
and it is quite improbable that he was ignorant of the place at
which he transacted both his private and public business.
The inquiry is then narrowed down to the sufficiency of a notice
left at the store of James Corcoran, a son of the defendant, with
which the defendant had no concern and which was not his place of
business.
The store of the son was as distinct and separate from the
dwelling of the father as if they had been under different roofs.
The former was entered from the street, the latter from an alley or
passage, and it does not appear that there was any inside
communication between the two. Overlooking for the present the
circumstance that the notary had been in the habit of leaving
notices for the defendant at the store, it must be admitted that
the service of the notice in question at the store was no more a
compliance with the requisition of law than if it had been
delivered to the son in the street or elsewhere or left at his
dwelling house.
Is the case then altered by the circumstance just mentioned? We
think not. It seems from the evidence that the store never was at
any period the place appointed for the delivery of notices or other
communications to the defendant. But if it had been, the note in
question came to
Page 27 U. S. 132
maturity sometime in the month of July, 1819, and the proof was
that the defendant took charge of the post office sometime in the
year 1818, after which that became the place at which notices and
other communications to him were usually left and where he
transacted both his private and public business. Were it to be
admitted that the service of a notice at a place not appointed by
the defendant as the one at which notices to him were to be
delivered would be sufficient in law to charge him upon the ground
that other notices had been previously left at the same place, it
would surely be too extravagant to contend that a service at the
same place would be legal after another place had been appointed
for that purpose and where they had in point of fact been usually
left.
It is unnecessary to pursue this inquiry further, because
although the sufficiency of the service of the notice generally was
insisted upon by the counsel for the plaintiff in error in
argument, yet the instruction asked for by the plaintiff in the
court below placed its validity not merely upon the circumstance
that the store was the place where notices for the defendant were
generally left, but upon the additional and stronger one that the
notice in this case was duly received by the defendant.
Now it must be admitted that if the hypothesis that the notice
in this case, though left at an improper place, was nevertheless in
point of fact received in due time by the defendant, were proved or
could from the evidence in the cause be properly presumed by the
jury, it was sufficient in point of law to charge him. In the case
of
Ireland v. Kip, 10 Johns. 490, 11 Johns. 231, it was
decided that admitting a service of notice at the house in
Frankfort Street, where the defendant had directed his letters to
be left by the letter carriers, would have been good and equivalent
to service at his dwelling or counting house; still the notice,
though improperly put into the post office, would be sufficient if
it were accompanied by proof that it had actually been delivered at
the dwelling house of the endorser or at the house in Frankfort
Street.
But in the present case there was not a scintilla of direct
Page 27 U. S. 133
or positive proof that the notice in question ever reached the
person, the dwelling house, or place of business of the defendant,
and the court was called upon by the plaintiffs' counsel to
instruct the jury that the papers which they had given in evidence
were competent evidence from which the jury might infer that the
defendant did duly receive the said notice. Was the court wrong in
refusing to give this instruction?
Presumptions from evidence given in a cause of the existence of
particular facts are in many if not in all cases mixed questions of
law and fact. If the evidence be irrelevant to the fact insisted
upon or be such as cannot fairly warrant a jury in presuming it,
the court is so far from being bound to instruct them that it is at
liberty to presume it that it would err in giving such instruction.
For why give it when it is manifest that if the jury should find
its verdict upon the fact so deduced, it would be the duty of the
court to set it aside and to direct a retrial of the cause?
Let us now see what were the papers which the plaintiffs had
given in evidence which the court was called upon to declare to the
jury were competent evidence from which the jury might make the
inference insisted upon.
The first is the letter of the defendant, dated 6 May, 1822, and
addressed to the cashier of the Bank of Columbia, in which he
declares that he will not take any advantage of the limitation act
for his endorsement on this and another note; the blank authority
sent to the defendant by the cashier of the Bank of the United
States on 14 December, 1824, for the signatures of the defendant
and of the maker of the notes, purporting to empower some attorney
to docket suits against them on these notes, with a declaration
endorsed thereon by the defendant that if the maker of the notes
should not be able to satisfy the bank before court and they should
determine to bring suit, he would instruct a particular person to
docket the case for him.
Let it be admitted that these papers bound the defendant to
abstain from making a particular defense to which the law entitled
him and to cause the action intended to be commenced against him to
be docketed so as not to delay the
Page 27 U. S. 134
plaintiffs, could the jury from thence infer with any legal
propriety either that the necessity of proving notice of the
nonpayment of the notes would be dispensed with or the fact that
the notice left at the store of James Corcoran was received by the
defendant
at any time, much less in due time?
If this was a question of inference fit to be submitted to the
discretion of the jury, it seems to the Court that the rules
respecting this subject which have been laid down with so much care
would no longer be fixed and certain, but would change with the
varying conclusions which a jury might draw of the fact from
evidence however slight given to prove it. What, for example, does
the rule that notice must in certain cases be served personally
upon the endorser, or be left at his dwelling house or place of
business, signify if a jury may from any evidence, however remote
from the fact, presume that the notice, though left at any other
place, may have found its way to the hands of the person whom it
was intended to charge?
It was insisted by the counsel for the plaintiffs, that the
evidence above noticed, and
alone relied upon in the
instruction asked for to warrant the inference, was
strengthened by the circumstance of the connection between the
defendant and the owner of the store where the notices for the
former were sometimes left. But if this circumstance stood alone in
the case and a notice delivered to the son who was not a member of
the father's family would not be a legal notice nor competent to
warrant a presumption that it had reached the father, which it
unquestionably would not, the question cannot be affected by its
being thrown in as a makeweight with other circumstances in
themselves insufficient to justify the conclusion.
In the case of
Ireland v. Kip, the circumstances to
induce a presumption that the notice reached the defendant were
certainly as strong as they could well be. The letter carrier was
directed to leave all letters for the defendant at a certain house
in Frankfort Street. The carrier called at the post office three or
four times every day and took out and delivered all letters left
there, and the defendant usually
Page 27 U. S. 135
sent or called every day at that house for his letters. Upon the
second trial of this cause, the plaintiffs insisted upon the above
evidence that the jury had a right to presume that the notice in
question had been duly received by the defendant. But the chief
justice who tried the cause, instead of leaving it to the jury to
make this presumption, overruled the whole of the evidence offered
by the plaintiffs, and directed a nonsuit. When the case came
before the supreme court, it was there stated by the judge who
delivered the opinion that it would be extremely embarrassing to
suffer the rule to fluctuate by making exceptions which would lead
to uncertainty, and that it was of the utmost importance in
mercantile transactions to have a certain and stable rule in
relation to notices -- in which sentiments this Court entirely
concurs. That court finally decided that, as it did not appear that
the notice was left at the defendant's place of business in
Frankfort Street and it did appear that he resided in the city, the
nonsuit was correct. If this case be law, as to which we are not
now called upon to give an opinion, it is in point upon the very
question now under consideration.
If the court below then committed no error in refusing to give
the instructions asked for by the plaintiffs' counsel, it was right
in giving that which was prayed for by the defendant's counsel,
which merely affirmed that the notice left at the store of James
Corcoran, occupied by him separately from the dwelling part of the
house occupied by the defendant, if the facts were so found by the
jury, were not sufficient to charge the defendant, and that on the
said evidence it ought to find for the defendant on the first
issue.
It is the opinion of this Court that the judgment of the court
below ought to be
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is considered, ordered, and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs.
