New York Belting & Packing Co. v. Ela

Smith, J. The defence is the want of notice of the dishonor of the note. The indorser’s residence and business address were unknown, and could not by the exercise of ordinary and reasonable diligence be discovered. The holder of a dishonored note is bound to exercise ordinary and reasonable diligence in ascertaining the residence and business address of the indorser, and in forwarding notice to him accordingly. Brighton Bank v. Philbrick, 40 N. H. 506; Bigelow on Bills and Notes 339, 341; Stoi’y on Bills, s. 299. What is due and reasonable diligence is a mixed question of law and fact, depending upon the circumstances of each case. Bank v. Philbrick, supra, 509, and authorities cited; Walker v. Stetson, 14 Ohio St. 89; Bank of Columbia v. Lawrence, 4 Pet. 578; Bank of *354 Alexandria v. Swann, 9 Pet. 33; Carroll v. Upton, 3 N. Y. 272; Wheeler v. Field, 6 Met. 290, 295. What inquiries or efforts the plaintiffs made to ascertain the residence or business address of the defendant do not appear. It is found that diligent inquiry was made by the notary, and that the notice given was the one most likely, in his judgment, to reach the defendant. This finding is the conclusion of the trial court, and is equivalent to a finding that the plaintiffs used ordinary and reasonable diligence in their efforts to learn the residence or business address of the defendant. The defendant resided in New York city January 10, 1873; and it does not appear that the plaintiffs were informed of his removal to New Hampshire. When the indorser changes his residence, and does not give the holder notice of the fact, and the holder does not know of the change, and is not guilty of negligence in not knowing it, notice sent to the indorser’s former place of residence is sufficient; and when nothing has occurred to suggest a change of residence, no inquiry is necessary. Bigelow on Bills and Notes 339; Saco Bank v. Sanborn, 63 Me. 340; Bank of Utica v. Phillips, 3 Wend. 408; Berridge v. Fitzgerald, L. R. 4 Q. B. 639 ; Ward v. Perrin, 54 Barb. 89; Bliss v. Nichols, 12 Allen 443. In Brighton Bank v. Philbrick, supra, it was decided that when the holder of a promissory note inquires of persons who, from their connection with the note or their acquaintance with the indorser, are likely to know his residence, and are not interested to mislead the inquirer, he has a right to assume and act upon the information as true, and it is due diligence on his part. See p. 511, and authorities cited. The notary (who is 'the holder’s agent) considered a notice addressed to the defendant at New York city as the one most likely to reach him; and as the case finds that diligent inquiry was made to ascertain the defendant’s residence, it follows that the notary could not learn by reasonable diligence that the defendant had changed his residence, and that the information which he received tended to show that the defendant’s residence or business address was New York city. There is no error of law in the result reached at the trial term. Exceptions overruled. Stanley, J., did not sit: the others concurred.