« PreviousContinue »
that the three facts, required to be conveyed in every notice of dishonour, must be conveyed to the mind of the person to whom it is addressed in a written or verbal notice, either expressly or so connected with each other as to leave no reasonable doubt upon his mind as to their meaning, viz: first, that the bill was presented when due; secondly, that it was dishonoured; and thirdly, that the party addressed is to be held liable for the payment of it;-Baron Parke thought, in Lewis v. Gompertz, 6 M. & W. 403, that any mercantile man who read the document there in question, could not fail to come to the conclusion that those three requisites had been complied
In the queen's bench, on a review of the cases, Lord Denman considered the rule to require "that the court must see that, by some words or other, notice of dishonour has been given." Furze v. Sharwood, 2 Adol. & El. N. S. 416, 42 Eng. Com. Law Rep. 739. It was considered that there was sufficient notice in Cooke v. French, 3 Per. & Dav. 596, 10 Adol. & El. 131, note; Stocken v. Collins, 9 C. & P. 653, 38 Eng. Com. Law Rep. 273; Robson &c. v. Curlewis, 1 Car. & Marsh 378, 2 Adol. & El. N. S. 421, 41 Eng. Com. Law Rep. 209, 42 Id. 421; King v. Bickley, 2 Adol. & El. N. S. 419, 42 Eng. Com. Law Rep. 419; Miers v. Brown, 11 M. & W. 372; Rowlands v. Springett, 14 Id. 7; Bailey &c. v. Porter, 14 Id. 44; Armstrong v. Christiani, 5 Man. Grang. & Scott 687, 57 Eng. Com. Law Rep. 687; Mellersh v. Rippen, 7 W. H. & G. 578.
Though these cases have modified the strictness of the rule laid down in Solarte v. Palmer, still a notice of dishonour requires a certain formal intimation that the bill has been duly presented and not honoured. Allen v. Edmundson, 2 W. H. & G. 719. Lord Campbell has confessed his regret at the decision of Solarte v. Palmer. He considers that it has caused much confusion; and expresses a wish that it were reversed by act of parliament, so as to relieve the commercial world from the risk of misconceiving the law. Everard v. Watson, 1 El. & Black. 801, 72 Eng. Com. Law Rep. 801; 18 Eng. Law & Eq. 194. Here, however, said Lord Campbell, the words are not the same as those in Solarte v. Palmer; and that being so, I am not restrained from applying to the question before me such understanding as I may possess." The endorser was made acquainted with the non-payment, and that 5s. 1d. expenses had been incurred; and he was desired to remit the money, or pay it to a party named. This notice was considered to convey all the requisite information.
In substance the English cases establish that in order to make a prior holder responsible, he must derive from some person entitled to call for payment, information that the bill has been dishonoured, and that the party is in a condition to sue him, from which he may infer that he will be held responsible. Cresswell, J., 7 Man. Grang. & Scott 411. In Miers v. Brown, 11 M. & W. 372, Alderson, B. describes what is needful in these terms: "Knowledge of the dishonour obtained from a communication by the holder of the bill, amounts to notice."
In the United States it has been determined that the notice is not defective because it does not state at whose request it is given, or who is the owner of the note. Shed v. Brett, 1 Pick. 404. The supreme court of the United States considers it no valid objection to the notice that it does not state who was the holder, Mills v. Bank U. S. 11 Wheat. 436; nor that it does not specify the time and place of demand. S. C.
The supreme court of Massachusetts thinks that the notice should be such that it will inform the endorser that the note has become due and been dishonoured, and that the holder relies on the endorser for payment; that this information may be express, or may be inferred, by necessary implication, or reasonable intendment from the language; construing such language in reference to its accustomed meaning, when applied to similar objects and with reference to the terms of the note, the time and place at which the note is to be paid as fixed by express or tacit agreement, or inferred from general or particular usages. Gilbert v. Dennis, 3 Metcalf 499. The notice in this case-delivered at about 11 o'clock in the morning of the day on which the note fell due-was held insufficient. The notice in a subsequent case-Pinkham v. Macy, 9 Metcalf 174-is perhaps liable to a like objection, that the demand and notice were too soon.
A notice in New York was in this form: "Cayuga County Bank, May 3d, 1845. Sir: Take notice that S. W.'s note for $300, payable at this bank, endorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof. Your ob't serv't, P. B. E., Notary public." This notice was addressed to and served on each of the endorsers. The court of appeals, very properly, held it to be sufficient. Cayuga Co. Bank v. Warden &c. 1 Comstock 413. A notice, in similar terms, is sufficient in Massachusetts. Housatonic Bank v. Laflin, 5 Cush. 546; Clark v. Eldridge, 13 Metcalf 96.
Where notice has been given by another party than the holder, there may be good sense in requiring that it shall be
accompanied by a direct demand of payment or a statement that it will be required of the party addressed; but in no English case has the absence of such information been held to vitiate a notice, in other respects complete, and which has come directly from the holder. Furze v. Sharwood, 2 Adol. & El. N. S. 416, 42 Eng. Com. Law Rep. 739. Notwithstanding the position of Ashurst and Buller, J's. in 1 T. R. 167-a position unnecessary for the case before them-it may be regarded as established in England that the holder of a bill or note need not in terms inform the party to whom he gives notice of its dishonour that he looks to him for payment. Miers v. Brown, 11 M. & W. 372.
In the United States, there are decisions on the same principle. Conter v. Harts &c. 3 Conn. 516; Shrieve &c. v. Duckham, 1 Littell 104; Bank of U. S. v. Norwood, 1 Har. & Johns. 423. When, in the supreme court of the United States, it was suggested that a letter stating the demand and dishonour is not sufficient unless it also inform the endorser that he is looked to for payment, Story, J. answered, that when such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. Bank of U. S. v. Carneal, 2 Peters 553.
A trifling error in the description of a note should not discharge the endorser. In New York, it has been left to a jury to say whether the note produced and the one intended by the notice were the same, Reedy v. Seixas, 2 Johns. Cas. 337; or whether the endorser was or was not misled by the notice. Bank of Rochester v. Gould, 9 Wend. 279. So in Massachusetts, a jury has been charged that if they believed the notice was intended for the note sued on, and the endorser must necessarily have known it, they should find against him. Thus was gotten over the objection that the notice, dated and given on the last day of grace, January 6th, described the note as having become due January 3d. Smith v. Whiting, 12 Mass. 6.
It cannot, says Story, J., be for a moment maintained that every variance, however immaterial, is fatal to the notice. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonoured. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material either to guard his rights or avoid his responsibility. Mills v. Bank U. S. 11 Wheat. 436. In this case the misdescription was merely in the date. The sum, the parties, the time and place of payment, and the endorsement were truly and accurately described. The error, too, was apparent on the face of the
notice. The party was informed that on the 22d of September, a note endorsed by him, payable in 60 days, was protested for non-payment; and yet the note itself was stated to be dated on the 20th of the same month. Under these circumstances the court directed the jury to find the notice good if there was no other note drawn and endorsed by the parties mentioned in the notice, payable at the office there described.
The case of Bank of Alexandria v. Swann, 9 Peters 47, fell within the same rule. Though the note was for $1400, and the notice described it as for $1457, this was considered not such a variance as might reasonably mislead the endorser; there being no other note of the same maker endorsed by the defendant, discounted by the bank, or placed therein for collection or otherwise.
Notwithstanding the judgment in Donner v. Remer, 21 Wend. 13, was reversed in Remer v. Donner, 23 Id. 626, 7, a variance as to the amount was under circumstances somewhat similar to those in Bank of Alexandria v. Swann, held immaterial in Cayuga Co. Bank v. Warden, 1 Comstock 417. In this case, which was a case of a note payable to, and endorsed by, two persons jointly, it was farther held that the notice was not defective because it was addressed to each of them severally, and mentioned the note as "endorsed by you." The supreme court of Massachusetts considers that no misdescription will render the notice insufficient if it is not of a character to mislead the endorser, and if upon the whole the notice is such as to carry home to him knowledge that the note in suit is the note intended. Housatonic Bank v. Laflin, 5 Cush. 549.
The English decisions proceed on similar grounds. In Lewis v. Gompertz, 6 M. & W. 403, though the bill was described not by its precise date, yet the court would not suppose the existence of another bill drawn and accepted by the same parties and for the same amount; and it considered that if there were but one bill, the defendant must have known at what time it would be due.
So in other cases of misdescription, it has been considered there was sufficient evidence of identity to go to the jury; there being an absence of proof of the existence of any other bill. Stockman v. Pair, 11 M. & W. 809; Rowlands v. Springett, 14 Id. 7. Where the notice to the defendant was of his acceptance drawn by J. H. when the bill was drawn by the defendant and accepted by J. H., the notice was nevertheless held quite sufficient; it not being possible that the defendant could have been misled by it. Mellersh v. Rippen, 7 W. H. & G. 588.
In Pennsylvania and New York, there has been difficulty when the notice states the protest to have been made on a wrong day. Whether the day so stated be one day too soon or one day too late, no doubt, in either case, if the protest was in fact not made on the proper day, the endorser of the note or the drawer or endorser of the bill would be discharged. But if the protest was in fact made on the proper day, and there is only a mistake in the notice in its statement of the day, the question is different.
In one case of this kind in New York it was left to the jury to say whether the endorser had been misled by the notice, and a verdict having been found against him a new trial was denied. Ontario Bank v. Petrie, 3 Wend. 456. But the judgment in Donner v. Remer, 21 Wend. 10, having been reversed in Remer v. Donner, 23 Id. 620, the supreme court of New York, notwithstanding what is said in 25 Wend. 277, has regarded the reversal as proceeding on the ground that the sufficiency of the notice was a question of law about which the jury had nothing to say. It, therefore, considers that the case of the Ontario Bank v. Petrie cannot now be supported; and that, as a matter of law, the endorser is not well charged by a notice which informed him that the demand had been made on the wrong day. Ransom v. Mack, 2 Hill 595.
The supreme court of Pennsylvania made a similar decision in Etting v. Schuylkill Bank, 2 Barr 356, 7. And yet, where the notice was by mistake dated the 26th instead of the 25th, the court, considering that by this mistake the endorser could not have been misled, held it immaterial. Tobey v. Lennig, 2 Harris 483. The court seems to think these
two cases entirely consistent.
It has sometimes been contended that notice of dishonour should be accompanied with a copy of the protest; but this is not necessary. Cromwell &c. v. Hynson, 2 Esp. 511. Whether the bill be a foreign or an inland bill-whether the party to whom notice is to be given be resident in England or not, it is sufficient that the bill is protested and that he has notice of the fact of its dishonour; without communicating to him the protest or a copy of it. Robins v. Gibson, 3 Camp. 334, 1 M. & S. 288; Goodman v. Harvey &c. 4 Adol. & El. 870, 31 Eng. Com. Law Rep. 212; Kenworthy v. Hopkins, 1 Johns. Cas. 109; Wells v. Whitehead, 15 Wend. 530; Dennistoun &c. v. Stewart, 17 How. 608.
10. How notice of dishonour is proved.
It lies upon the holder to shew the fact that notice was