Ogden v. Dobbin — 2 N.Y. Super. Ct. 112

Majority

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Jonathan Ogden and others versus James Dobbin and Joseph Evans.

Headnote

The holder oi a promissory note, who receives and indorses it for the sake of collection only, although amere agent, is to be considered as the real holder, for the purpose of receiving and transmitting notices.

When a note has been presented for payment and payment is refused, the holder acts with reasonable diligence, if he gives notice by the regular course of mail, to the indorser from whom he received it, that he may transmit notice to his immediate indorser, who may take the same course as the prior indorsers. And if the indorsers, in due season, adopt the regular course of the mail, for transmitting notices from one to the other, and by that means the route to the first indorser is made circuitous, it is no want of diligence on their part; and he cannot set up the manner of the giving of the notice and the delay occasioned by it, as a defence.

When a note is made payable at a particular place, it must be presented at that place for payment. But when it is made payable at a Bank, and the note is placed in the hands of the cashier of that Bank for collection, there is no necessity for his making a specific or clamorous demand. The legal requirements, as to presentment and demand are complied with, if the note was in the bank at the time it fell due, in the hands of the cashier, who was ready to receive the money.

This was an action upon a promissory note for $856 81, made by the mercantile firm of Goddard & Burnap, of Eatonton, in the State of Georgia, in favor of the defendants, and payable to their order, at the Branch of the Stale-Bank of Georgia, at Eatonton, six months after its date, and indorsed by the defendants.

The declaration contained three counts. The first stated that the plaintiffs were the first indorsers of the note ;—the second set forth an indorsement by the defendants to one E. Molyneux, Jr., and by him to the plaintiffs. Both counts averred a presentment of the note at the Branch of the State Bank of Georgia, at Eaton-ton, for payment, on the 17th day of March, 1828, and a neglect

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and refusal to pay. The third count was for money had and received.

The cause was tried before Mr. Justice Oakley., At the trial it appeared that the note had been indorsed by Molyneux to the firm of Stiles & Fannier, of Savannah, and by them to one D. B. Halstead, of Milledgeville, who had also put his name upon it:— butt these two last indorsements were stricken out. It also appeared that Stiles & Fannier had forwarded the note to Halstead for collection, and that he immediately transmitted it to the cashier of said Branch Bank at Eatonton.

On the 17th of March, 1828, (the day when the note became due,) the cashier handed it to a notary, who presented it to Bur-nap, one of the makers, at their place of business in Eatonton, and demanded payment, which was refused. The note was thereupon immediately protested for non-payment, and a notice thereof, addressed to the defendants, was on the same day put into the mail at Eatonton. But as the notary did not know where the defendants resided, he enclosed the notice in an envelope directed to Hal-stead, at Milledgeville, from whom the cashier received the note for collection.

Milledgeville is twenty-two miles distant from Eatonton; but the arrangement of the mails between the two places is such, that the notice did not leave Eatonton nor reach Milledgeville until the 23d of March, 1828. Halstead on that day received the notice, directed it to the defendants at New-York, and immediately put it into the mail; and thus directed, it left Milledgeville for New-York, on the 24th of March.

It appeared by the evidence, that if the notice had been transmitted by the notary, direct from Eatonton to New-York, it would have left the former place on the 18th of March, and by due course of mail, would have reached New-York in eleven days thereafter. The mail is also occupied eleven days in passing from Milledgeville to New-York, If the notice, therefore, had taken the most direct course to New-York. it would have reached that city on the 28th of March, whereas by the route adopted, it could not arrive there until the third of April, 1828,

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It appeared also, that the notary had addressed notices of the non-payment of the note to Stiles & Fannier, and to Molyneux, the other indorsers, and that these notices, in like manner, were enclosed to Halstead at Milledgeville.

There was no evidence of any specific demand of payment of the note at the Branch Bank in Eatonton ; but it was proved that Goddard & Bumap never had any funds in that bank, with which to pay the note.

Upon this evidence, the counsel for the defendants contended that the plaintiffs had no right to recover ; first, because the plaintiffs had not used due diligence, nor adopted a proper course in giving notice to the defendants of the non-payment of the note: and secondly, because there was no proof to show that the note had been presented at the bank for payment. The presiding Judge, however, charged the jury that the plaintiffs had a right to recover, and the jury returned a verdict in their favor.

The defendants excepted to the opinion of the judge ; and by consent of parti.es, a case was made for the opinion of the Court, which either party had leave to turn into a bill of exceptions.

Mr. J. Greenwood, for the defendants, now contended,

I. That the plaintiffs did not use due diligence in the manner or time of giving notice to the defendants of the non-payment of the note. If Halstead was the agent of the plaintiffs to collect the money, he was bound to use all diligence for his principals. He ought to have informed the cashier of the Bank, when he transmitted the note to him, of the residence of the indorsers. The plaintiffs, however, are bound by the acts of their agent, and they have no right to transmit their note through a circuitous line of agents for collection, to the prejudice of other parties. The holder can claim no right of delay by employing agents, but must act with the same promptitude which the law requires in all cases where an indorser is to be charged. [2. John. Cas. p. 1. 3 Bos. & Pul. 599. 18 John. R. 230.]

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II. The note ought to have been presented at the Bank in Eatonton for payment. The general rule is, that a note must be presented for payment at the place where it is made payable, and want of funds.will not dispense with a neglect of demand. [17. John. R. 248. 19 J. R. 420, 1. 16 East. 113.]

III. The plaintiffs having averred that the note was presented at the Bank, must show the fact to be so, and cannot cover the defect in their proof, by resorting to the count of money had and received.

Mr. Thomas L. Ogden, contra, for the plaintiffs.

As to the first point made by the defendants, it will not be contended that any greater diligence is required of an agent than of a principal. In point of fact, Halstead had no interest in the note, but was a mere agent for Stiles & Fannier, who had sent it to him for collection. But suppose he was the real holder of the note, having received it of Stiles & Fannier by a bona fide indorsement,— what would have been the cashier’s duty in that case, he being the agent of Halstead I Clearly he would have been justified by giving immediate notice to his principal, that he might nqtify his immediate indorser. The rule is well settled that the notice may pass circuitously from one indorser to another in the regular order- of the indorsements, until it shall reach the person who first negotiated the note, by putting his name upon it to give it currency. Any other rule might work the most manifest injustice, for in many instances it is impracticable for the last indorser to state the places where the first and intermediate indorsers reside. Notes are transmitted from agent to agent for the mere convenience of collection, and are indorsed by such agents for that purpose merely. By what channel shall the notice return, except by that in which the note, and with it the names of the various indorsers, came 1 The last indorsee may know no person whose name is on the note except his immediate indorser, and if he uses all diligence to transmit the notice direct to the person from whom he received the note, (the residence of the others being unknown,) he discharges his duty.

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In this case, it is in evidence, that the notary who made the demand and protest, was ignorant of the residence of the defendants. But it is said that Halstead should have informed the cashier as to that, when he transmitted the note to him for collection. Halstead himself was but an agent for Stiles Sc Fannier ; and what proof is there that he knew where the defendants were to be found 1 The same remark is applicable to Stiles & Fannier, for it is to be presumed that they were agents merely, since we find their names stricken from the notes.

But this matter is fixed and settled by the authority of cases decided in our own Courts, as well as those of other states and countries, and there can be no doubt that the notice was properly given, and that it is sufficient to charge the indorsers. [3 John. Cas. 89. 18 John. R. 230. 5 Mass. R. 167 . 3 B. & P. 599. 5 Cowen’s R. 303.]. This last case is quite decisive upon this point.

II. As to the demand. It is in evidence that the note was at the bank on the day that it fell due, and if the makers had placed funds there, or presented themselves with funds, the money would have been received and the note given up. The cashier, who was the agent of the holders, knowing that there were no funds in the bank for the payment of the note, did not perhaps clamorously demand the money, but he was ready to receive it,' had the makers been prepared to make payment. It was sufficient that the note was at the bank, and the averments in the declaration are fully satisfied by this state of the proof. [ 6 Mass. R. 524 . 2 Hen. Bla. 510. 18 John. R. 230.]

Mr. Greenwood and Mr. Anthon, in reply.

This case is not like any of those to be found in the books; it is sui generis, and cannot be supported on any sound principle. The leading authority for all subsequent decisions upon this subject was the case of Haines v. Burkes. [3 B. & Pul. 599.] It is the foundation upon which the others rest, and no principle can be found to uphold the sufficiency of this notice.

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The indorser of a note is entitled to notice' of its non-payment, from the last real holder. The latter has no right to establish a circuitous line of agents, through which the notice is to be passed before it can reach the principal: and if the plaintiffs transmitted the note to Stiles & Funnier for collection, they were bound to inform them where the defendants’ place of residence was. The same information should have been given to Halstead, that he might have communicated it to the cashier, and the latter would then have been bound to transmit his notice directly to New-York. The object of the notice is, to give the indorser an opportunity to secure himself;—but here six days were lost by the laches of the plaintiffs and their agents. If the principle be once established, that the holder of a note may transmit it from agent to agent for collection, and that notice of non-payment may return through the same channel, there is no bound at which we can stop. A note payable at Eatonton, may pass from New-York through a dozen different States, stopping with an agent in each, and notice of nonpayment may then travel the same leisure road on its return. This cannot be permitted, and the cases cited do not support the plaintiffs’ position. The authorities from the first of Johnson’s Cases and that from the third of Bosanquet fy Puller, are not in point for the plaintiffs, and are cited by us, to show the distinction between the true rule and the one sought to be established. There was no line of agents in those cases, and the same delay was not produced. So in the case cited from the 18th of Johnson’s Reports. There the notice went by an immediate and customary route of the mail, although not by the shortest route, and the party was in the habit of receiving his letters by the course adopted.

But the case on which the defendant seems principally to rely, is that from the 5th of Cowen. In that case a draft on Bristol (R. I.) was put into the Mechanic’s Bank of New-York, for collection, transmitted to Providence and from thence to Bristol. This was the regular course of the mail, and the only route by which it passed. The notice was immediately returned by the same route, and there was none other by which it could be transmitted. There was no delay in that case, no travelling from the ordinary course. How is it here l Eatonton is but 22 miles from Milledgeville, and yet

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the notice was seven days in passing between these two places. Was that diligence 1 The notary should have inquired after the residence of the indorsers, and in the want of other information, the place of the date of the note would have been a guide. But here, the notary is supposed to have discharged his duty by the most negligent attempt at performing it. The notice cannot be deemed sufficient, and the defendants are discharged by the laches of the holders themselves.

II. The plaintiffs having averred a presentment at the bank for payment, and a demand there, should have proved the facts laid in their declaration. Such proof was a condition precedent to their recovery, and the want of funds is no answer to the want of demand. In this respect there is a difference between the case of a promissory note and a bill of exchange, and the plaintiffs have neglected their duty. The makers have promised to pay the note at the bank at Eatonton, and there is nothing to show that it would not have been paid at the' time and place, had a demand been made. But at all events the plaintiffs were bound to prove all the material allegations in their declaration, and in-relation to the demand of payment they have totally failed.

This was an action on a note drawn by Goddard & Burnap, and payable to the defendants. It bore date at New-York, where the defendants resided, and was made payable at the State Bank of Georgia at Eatonton. It was indorsed by the defendants, and under their name, by E. Molyneux; audit had been indorsed under the name of Molyneux, by Stiles fy Fannier, and by D. B. Halstead. The two last indorsements were stricken out.

The note was sent by Stiles & Fannier, who resided at Savannah, to Halstead at Milledgeville, for collection, who indorsed it, and sent it to the cashier of the Bank at Eatonton, where it was payable. The evidence sufficiently shews that the note remained in the Bank until it fell due, when it was handed by the cashier (there being no funds there to pay it) to a notary, who made a personal demand of payment on the maker, who resided at Eaton-ton. The notary, not knowing the residence of the defendants,

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or of any of the indorsers, before Halstead, made out notices of demand and of non-payment, directed to them severally, and ed them in a letter to Halstead, which was deposited in the post office at Eatonton without delay. By the order of the mail, that letter did not leave Eatonton for Milledgeville until five or sis days had elapsed. Immediately on the receipt of the notice to the defendants by Halstead, he directed it to thenrat New-York; and it was despatched from Milledgeville, without delay; but by the arrangements of the mails it could not have reached New-York, by several days, as soon as it would have done if it had been sent directly from Eatonton.

On this state of facts, the defendants object, 1st, that the note was not duly presented for payment at the Bank, and 2dly, that there was a want of due diligence in giving notice to the defendants of non-payment.

As to the first objection, it is clear, that a note payable at a particular place, must be presented for payment at that place; but it cannot be doubted that the facts in this case show such a presentment. The note was in the bank at the time it fell due, and in the hands of the cashier, who was authorized to collect it. If the makers had called there to pay it, it would have been delivered up to them. There was no necessity for the cashier to make any other demand. His subsequent delivery of the note to a notary, and his personal demand on the makers, was probably by way of greater caution, and was clearly unnecessary. [2 H. B. 509. 6 Mass. 524 .]

I am of opinion, also, that there was no want of diligence in giving notice to the defendants. The objection rests on the ground that Halstead, knowing the residence of the defendants, ought to have informed the cashier of the bank; and in that case, notice would have been received by the defendant several days sooner than it was.

The rule governing this part of the case seems to be clearly laid down in Mead v. Engs, ( 5 Cow. 303 .) The Supreme Court there fully establish the principle that the holder of a note, receiving and indorsing it for the purpose of collection, and being therefore merely an agent, is nevertheless to be considered as the real holder for the

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purpose of receiving and transmitting notices. And the general rule seems clearly settled, that it is sufficient to give notice of nonpayment with reasonable diligence, to the indorser, from whom the note was received, that he may give notice to Ms immediate indorser, &c.

Applying that principle to the present case, it was enough for the cashier of the bank, or the notary, to give notice by the earliest opportunity in the regular course of the mail, to Halstead, which was done; and it would have been sufficient for him, to have given the like notice to his immediate indorsers at Savannah. It is clear that the defendants in this case received the notice as soon, or sooner, than they would have done if it had been remitted in that circuitous manner. The same doctrine is also recognized in Tunno v. Lague, (2 J. Ca. 1.) and in Haynes v. Birks. (3 Bos. & Pul. 599.) The motion for a new trial must be denied.

Motion for new trial denied.

[Ogden & Huggins, attys. for plffs.

Cases cited

Mead v. Engs 5 Cow. 303 N.Y. Sup. Ct. p. 119