Aymar & Aymar v. Beers

Evidence was offered at the trial, to prove that the payee was a farmer in Virginia; and had brought to the city of New York a cargo of wheat, which the defendant had sold; and that the bill was given for the balance of the nett proceeds. This was objected to,

It appeared in evidence, that on the 10th of January, 1828, the bill was presented for acceptance, which was refused ; and on the same day, notice of non-acceptance was sent by mail to the defendant,

On the 14th of January, 1828, the bill was presented for payment. It was not paid, but protested for non-payment. Abbott h Go., the drawees, failed to meet their engagements on the day the bill was presented; and were supposed to be insolvent. John Bassett, the payee, resided at Hanover, about 20 miles from Richmond, Virginia. When he returned home from New York, which was between 'the 1st and 6th of January, 1823, he had the draft in his possession. The delay in presenting the bill after Bassett returned, was in consequence of ill health. In traveling Rom New York directly to his residence in Hanover, the distance is about 20 miles less than to pass through Richmond.

The defendant moved for a non-suit, which the judge said he should order, unless further evidence was produced.

The plaintiff then proved that the payee was in New York in December, 1822; and had dealings with the defendant, who had funds of his in his hands. That he was in the defendant’s counting-room on the 13th of December, 1822; and said he intended to depart for his residence on *the 14th. He was then laboring under a bad cold and asthma.

The plaintiff offered to prove that it was understood between the parties, that the payee was to carry the bill with him; but the evidence was excluded.

The counsel for .the plaintiffs insisted on their right to

It will be conceded, that if a presentation for acceptance was not made within a reasonable time, and notice given of non-acceptance, the defendant is discharged. The material questions then are, 1. Is the court to decide whether there has been reasonable diligence, or is it the right of the jury ? 2. If the latter, then a new trial must be granted, because the question has not been disposed of by the proper forum. But if the former, then we are called on to decide, whether, under the circumstances, the delay was unreasonable.

It is scarcely necessary to remark on the importance of certainty to the commercial world, in all questions relating to bills or notes: and it is equally obvious, that if the jury are to decide on this question, conclusions may be expected to vary" on substantially the same state of facts. I should be unwilling to sanction such a doctrine, unless required by a well-settled course of decisions. I am aware of no exception to the rule, that when there is no dispute about facts, it is the business of the law to declare what shall be their effect. A bill payable a certain number of days after sight, is analogous to a promissory note payable on demand, so far as respects the use of due diligence. In both cases, an unreasonable delay will exonerate; in the former an indorser, in the latter a drawer. These cases are distinguished from notes or bills having a certain number of days to run. There, by repeated adjudications, the law has accurately defined within what time a demand '"'shall be made, and notice given. The omission to pursue the course prescribed, is at the peril of the holder. The question of reasonable diligence does not seem to be open. Anything constituting a legal excuse in such a case, must generally be derived from the act of the party to be charged, showing that he has directly or impliedly consented to release the rule regulating demand and notice. With respect to

On this question, I apprehend, our courts have held a uniform language. It is the same as that of lord Mansfield, *in Tindal v. Brown, (1 T. B. 163 :) “What is reasonable notice is partly a question of fact, and partly a question of law. Wherever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to for the sake of certainty.” In Furman v. Haskin, (2 Caines, 372,) the court say, “ What is a reasonable time, is a question of law, if the facts be agreed on the rule I take to be universally applicable, as well to bills

The remarks of Lord 0. J. Willes in Bell v. Wardell, (Willes’ Rep. 204,) where a custom was pleaded for the inhabitants of a town to walk and ride over a certain close at all reasonable times, were, that what was deemed a reasonable time was considered to be a question of law arising out of all the circumstances. He observes, the court were the proper judges; “ for what is contrary to reason cannot be consonant to law, which is founded on reason; and therefore, the reasonableness in these and the like cases, depends on the law, and is to be decided by the judges.”

The rule rests on this ground with us, and ought not to be disturbed.

The next question is, has there been unreasonable delay ?

In the case of Robinson v. Ames, ( 20 John. 146 ,) the action was against the defendant as drawer of a bill of exchange in Georgia, dated the 6th of March, 1819, upon •""Townsend and White, in New York, payable 60 days after sight to Starr and Ross or order; by whom it was indorsed to the plaintiff. The bill was presented for acceptance on the 20th May, 1819, which was refused, and notice given. One question was, whether the bill was presented in due time. The question was ably examined by chief justice Spencer. He observes, that where a bill of exchange has been drawn payable at sight, or any specified number of days after sight, there is no definite or fixed rule when the bill shall be presented for acceptance, other

The bill, in this case, was not negotiated, or put into circulation, by the payee, although it was indorsed by him. He did not part with his interest in the bill; and therein the cases are distinguishable. Had the bill been put in circulation, probably the question of laches could not have arisen; for in the case just cited, 75 days had elapsed before presentment; and yet held there was no unreasonable delay. Although less latitude is allowable on bills not negotiated, yet it is manifest that some indulgence is allowed; and, as appears from the case of Muilman v. D'Eguino, the courts had been very cautious in fixing any time for an inland bill payable at a certain period after sight, to be presented for acceptance. This difficulty must always exist, when it is considered that the drawer of a bill payable after sight, has himself fixed no period for presentment ; but left it to be governed by the circumstances of the case.

In the case of Field v. Nickerson, ( 13 Mass. Rep. 131 ,) the action was by the indorsee, against the indorser of a note payable on demand. A delay of 8 months was held unreasonable. The court considered a note payable on demand, like a bill payable at sight; that, in the latter case, the holder must present his bill for acceptance within a reasonabld time, in order to charge the drawer; and in *the former, the indorsee must make a demand within a reasonable time, in order to charge the indorser; that the time may vary according to the circumstances and situation of the parties. The same rule is recognized in Losee v. Dunkin, ( 7 John. 70 .) It was held, in that case, that there is no precise time at which a note payable on demand is to be deemed dishonored. Two months and one day had elapsed before the indorsement was made. It was held that the maker might show payment to the payee. The decision seems to be placed on the ground that no particu

If no particular circumstances had been stated in this case, I should incline to think there was unnecessary delay; but evSn then, it may be observed that, in the cases reported, where the delay was held unreasonable, a much longer time had intervened. Here were only 29 days intermediate the date and presentment; and it may be inferred that an immediate transmission of the bill by mail, was not contemplated. The payee resided in Virginia; and was about returning immediately after the bill was drawn. He resided within 20 miles of the drawee’s. It is more reasonable to suppose that the payee was to have been the bearer of the bill. He might not incline to risk the conveyance by the mail, or transfer the bill to a correspondent in Richmond; or he may not have known a proper person to whom to commit the trust. Be this'as it may, it seems to me that, in the payee’s situation, the law did not impose on him the necessity of forwarding by mail, or sending a special agent.

The question, then, of due diligence, turns on the particular circumstances disclosed. The only facts of importance that enter into this view -of the case are, that the payee, being at the distance, say, of 300 miles, or more, *from Richmond, when he received the bill, was at the time afflicted with a violent cough and asthma, to which he had long been subject. George W. Bassett testified, that, after the payee had returned home, he was prevented by ill health from presenting the bill; and that he was confined to his house by sickness between the 3d and 10th of January, 1823, having a violent cold approaching to pleurisy. From the state of his health, it may well be presumed that he was retarded in his journey. If he left New York the 13th of December, and arrived at home January 1st, there are 16 days, a period unnecessary for a man in health; but

*The non-suit must be set aside, and a new trial granted; the costs to abide the event.

Motion granted.

Sutherland, J., not having heard the argument, gave no opinion.