President of the Bank of Utica v. De Mott — 13 Johns. 432

Majority

p. 432

The President, &c. of the Bank of Utica against De Mott.

Headnote

dteefo/apró-' Ssín adfirit ttat-ttiSfft tice of the non|eí^ntttó°hím which ho is actually resident, wdjf directed uíat°dueh°dif^ to”a*ecertain"'ws wuhouuucclss1 charged,be d’5’

THIS was an action of ass.umpsit against the defendant as endorser of a promissory note. , Thé cause was tried at the ^ast Oneida'ctecmh.

The note on which-the. action was founded was drawn by.one William Low for 375 dollars,- and payable to the defendant or order, at the Bank ot Utica, one hundred and twenty days’ after ■» , ■ T •. . - ' ^ date, and was dated .the 6tn Dec. 1814. There was no town or f’lace mentioned in the note where it purported to have been ina<fe* •1!h® &ote not being paid on the day on which it became' payable* k was proved, by a book-keeper in the Bank of Utica, that on the evening of the same day he .put the usual notice to an endorser into the post-office at Utica, directed to the defendant, at Canandaiqua, 'where, from the best information he could get, ,he ’ supposed the defendant resided. The witt)ess’' alse>stated that he inquired of'the, cashier and some of t-he.directors, as to the place of residence of the defendant, and that/ he was in thé hábil, in all cases'where-the.place of residence of the.e.ndorsers of a note was uncertain, of making inquiries of such persons as he supposed were best acquainted with their place of residencethat on this occasion, also, he found in the bank a cancelled nóte drawn by -the same Low, and endorsed by the.defendan.t„wh.ich note was dated at Canandaiqua, and the body of it in the hand-writing of á person whom he knew resided at Can-, andaiqua, but the nóte offered in evidence was not in the handwriting of the same person. * Neither the maker of the note nor the defendant had ever lived in Utica, and it did not appear that the defendant' had ever admitted -that he had veceive'd'notice.

p. 433

The defendant "proved that he resided at Ovid, in the county of Seneca, and had lived there for ten years past: the maker of the note also lived at Ovid, at the time when it was given.

The jury found a verdict for the plaintiff for the amount of the note, with interest, subject to the opinion of the court on the foregoing facts. The case was submitted to the court without argument.

delivered the opinion of the court.

The defendant is sued as endorser of a promissory note, payable at the bank of Utica. When the note .fell due, notice of its non-payment was given, by a letter put into the post-office at Utica, directed to the defendant, at Canandaiqua. It was proved that the defendant lived at Ovid, in the county of Seneca, and had resided there for ten years past. The excuse for the misdirection of the notice is, that the book-keeper who gave it, was informed, by the cashier and some of the directors of the bank, that the defendant resided at Canandaiqua.

The notice is bad. The defendant was entitled to information of the non-payment of the note, and that he was looked to for payment. He had a permanent residence, for ten years, in a different county. With ordinary diligence the place of his abode might have been ascertained; and it must be the plaintiff’s loss, not the defendant’s, that the notice was not given. It is an essential part of the contract, that the endorser shall be notified of the non-payment of the note, that he may take measures accordingly; and if any loss has happened from the want of notice, it must be borne by the party on whom the burden of giving due notice is thrown by law, and who has been guilty of laches. The case of Chapman v. Lipscombe & Powel, ( 1 Johns. Rep. 294 .,) was peculiarly circumstanced. There was great diligence used in that case to find out the defendant’s residence, and the. bill was dated at Norfolk, to which place one of the notices was directed. Here the note was not dated at any place, and the inquiry was very limited.

Judgment for the defendant.