Majority
p. 520Spencer vs. The Bank of Salina.
Headnote
Where notice of protest has been directed to an endorser at a wrong place, the question whether due diligence was previously used in endeavoring to ascertain his residence, belongs to the court as matter of law, and not to the jury, provided there be no dispute about the facts.Though the notice be directed to the place where the paper is dated, yet if the endorser do not reside there, and no enquiry be made to ascertain his residence, he will not be liable.
And where a notary who had thus misdirected notice to an endorser, testified that he previously made ineffectual enquiry of persons in the har-room of a hotel, and of others whom he either met at the post office or in the street, but was unable to give the names of any of them; held, not evidence of due diligence, especially as it appeared that a more thorough enquiry would have proved effectual.
The question as to the extent of enquiry requisite in such cases, discussed and considered.
Assumpsit, tried at the Onondaga circuit, in April, 1842, before Moseley, C. Judge. The plaintiff was the holder of a promissory note for $100, dated Syracuse, January 10, 1837, made by Silas Ames, and payable sixty days after date to the order of Elijah C. Rust, at the Salina Bank. The note was endorsed by the payee. Before the note fell due, the plaintiff left it with the defendants for collection, and this action was brought on the ground that the defendants had not taken the proper measures to charge the endorser. The only question was upon due diligence in giving notice, which was not received by Rust the endorser. The notice was sent to Syracuse, where the endorser had never resided. He had resided at Jamesville, Onondaga county, for more than forty years, where he carried on business as a tanner and currier. He had been division inspector, and he held the office of justice of the peace from 1833 to 1837. Prior to 1837, he had done business with the defendants, and had for twenty years been acquainted with the cashier of the bank. He was acquainted with many of the business men at Salina, and often received letters from that post office. The postmaster at Salina and one of his clerks knew
p. 521
Rust, and knew where he resided. Hopping, who did business as attorney for the bank, also knew Rust and his residence. Chapman, the teller and notary of the bank, who made the demand and sent the notice to Syracuse, testified that there was no memorandum on the note to tell where Rust lived. He said he went out of the bank, and made, as he supposed, diligent enquiry. He went to the public hotel of Mr. Sanger, opposite the bank, and enquired there of several persons in the barroom, but he did not know who they were. He enquired at the post office, or of individuals he met in the street, he did not know which. He could not name any of the individuals of whom he enquired. He knew there were Rusts living at Syracuse, and that the plaintiff lived there. He could not say whether the cashier was at home at that time or not. He did not enquire of any of the directors of the bank, and no one told him that Rust lived at Syracuse. The judge decided that the defendants had shown due diligence; that there was no question for the jury ; and he instructed them to find for the defendants. Verdict accordingly, which the plaintiff now moved to set aside, on a case.
T. T. Davis, for the plaintiff.
G. F. Comstock, for the defendants.
As there was no dispute about facts, the question of due diligence belonged to the court as matter of law, and not to the jury. (Bank of Utica v. Bender, 21 Wend. 643 ; Remer v. Downer, 23 Wend. 620 .) But although the judge was right in taking the question into his own hands, I think it was not properly decided. There may be a slight presumption that the drawer of a bill or the maker of a note resides at the place where the paper is dated; but I see no ground for presuming that the endorser lives at that place. Even in the. case of a drawer, it is not sufficient to send notice to the place where the bill is dated, if the drawer reside else
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where, and no enquiry be made. (Lowery v. Scott, 24 Wend. 358 ; Hill v. Varrell, 3 Greenl. 232 ; Bayley on Bills, 283, Boston ed. 1836.) Now what kind of diligence was there in this case 1 The notary enquired of some persons in the barroom of a hotel opposite the bank, but he does not know who they were; and he enquired either at the post office, or of individuals he met in the street, and he does not know which. Nor does he know any of the individuals of whom he sought information. This is far enough.from amounting to due diligence. The notary should have gone among the business men of the place, and if he had done so, the evidence does not leave room for a doubt that he would at once have obtained correct information concerning the residence of the endorser. Rust had lived in a village only a few miles distant, more than forty years; he was engaged in business, had held public offices, and was well known to many of the business men at Salina. Again, the notary did not obtain any affirmative information. No one told him that Rust lived at Syracuse, where the notice was sent. If he had been told by some credible person, who would be likely to know the fact, that Rust lived at Syracuse, he might have acted upon that information without pushing his enquiries further. (Bank of Utica v. Bender, 21 Wend. 643 ; Ransom. v. Mack, 2 Hill, 587 .) But until some one is found who professes to be able to give the required information, it will not do to stop short of a thorough enquiry at places of public resort, and among such persons as would be most likely to know the residence of the endorser. The defendants fell far short of making out such due diligence as will excuse the misdirection of the notice.'
New trial granted.
Cases cited
- Bank of Utica v. Bender 21 Wend. 643 p. 521, p. 522
- Remer v. Downer 23 Wend. 620 p. 521