National Bank of Asheville v. Bradley

Clark, J.: The draft having been accepted, the drawee became primarily liable, and in the event of dishonor notice must be given to all those who are secondarily liable, as drawer and endorsers. Denny v. Palmer, 27 N. C., 610; Tiedman Com. Paper, Sec. 336; 3 Randolph Com. Paper, Sec. 1238; 2 Daniel Neg. Inst., Sec. 995 ; Code, Sec. 42 and 49. Notice of dishonor must be given to the drawer. Brown v. Teague, 52 N. C., 573. If it had been in fact accommodation paper, then, notwithstanding the form of the paper, the drawer would have been primarily liable and not entitled to notice, but the burden to show this is on the holder, and there being no evidence to that fact the form of the paper governs and the drawer was entitled to notice. It is true that being an inland bill, protest was not necessary, but notice of dishonor must be given with the same promptness as of a protest. Hubbard v. Troy, 24 N. C., 134; Bank v. Lutterloh, 95 N. C., 495; Shaw v. McNeill, Ibid, 535. The insolvency of the drawee does not excuse the holder for failure to give notice to the parties secondarily liable. Denny v. Palmer, supra, 2 Daniel, supra, Sections 1171, 1172. The Law Merchant always required notice to be given to the parties secondarily liable, in reasonable time, what was reasonable time being a question of law. Brittain v. Johnson, 12 N. C., 293. This leading to endless litigation as to what was reasonable notice under varying circumstances, it has now been long settled that reasonable notice is one which is sent by the first post, after the day of dishonor and when there is a daily mail as here, this necessarily means the next day, if the next *531 day’s mail does not leave before business hours, as it did not in this case. The acceptance not having been paid at maturity on the 11th of January, notice of dishonor should have been mailed on the 12th. Hubbard v. Troy and Denny v. Palmer, supra; 2 Daniel, supra, Sec. 1039 ; 3 Randolph, supra, Sec. 3 260; 1 Parson Bills and Notes, 507; 3 Kent Com. (13th Ed.) 106, 107; Tiedman, supra, Sec. 337. In the charge of the court below there was no error. N o Error.