Hill v. Varrell

Mellen, C. J. delivered the opinion of the Court. The only question which has been raised by the parties in this cause is, whether sufficient notice has been given to the drawer of the non-payment of the bill ; or due and reasonable" diligence used to give it. The declaration states that notice of the nonpayment was duly given to the drawer. When such is the averment in the declaration, legal notice must be proved ; and the proof of due and reasonable diligence, when ineffectual to give such notice, will not support such averment; on the contrary, the plaintiff should aver that he had used such diligence, but had been unable to give notice of the dishonor of the bill. See 6 Mass. 386 Blakely v. Grant. The only notice given in this case was a letter seasonably deposited in the post office in Boston, by the notary, whose protest is in the case, directed to the drawer at Mew-Orleans. Now, by the report it appears that the defendant, the drawer, has from his youth resided in York, in this State, and for many years with a family there. There is no proof or pretence that he ever resided or had a counting room in New-Orleans; and therefore notice sent by mail, directed to him at that place, cannot be considered as legal notice ; though it would have been sufficient if he had been resident there, though the letter had never reached him. Freeman v. Boynton 7 Mass. 483. Shed v. Breet 1 Pick. 401. As the proof, therefore, does not support the averment in the declaration, we are of opinion that the decision of the Judge before whom the cause was tried, that no sufficient notice was proved, was perfectly correct and proper. And here we might stop and enter judgment on the verdict ; but as the counsel have proceeded further, and gone into an examination of the facts reported, and considered them as establishing the point that due and reasonable diligence had been used, though without success, and so that the plaintiff was entitled to recover; it may not be improper or useless to express our opinion on this point also. The authorities cited by the plaintiff’s counsel clearly shew that there is on this subject, no universal rule ; that the 237 law only requires due and reasonable diligence in giving or attempting to give notice ; and that each case must stand on its own peculiar facts and circumstances. The counsel has relied on the case of Chapman v. Lipscombe 1 Johns. 294. In that case the plaintiff made inquiries in Neto- York to ascertain the residence of the drawer; and of those whom he supposed most able to inform him. He was informed that he resided in one place, when in fact he resided in another. He notified according to this false information ; innocently given no doubt, and innocently followed ; but the Court considered that as he had made such inquiries as were in his power, and by the information he had received, was led into an error, he was excusable ; and under the circumstances of the case he was considered as having used due diligence, though he had not given legal notice. The counsel has also relied on Baleman v. Joseph 12 East. 433. That ivas an action by an indorsee against an indorser. The plaintiff might have given notice to the defendant on the first of October, had he known where he lived ; but he did not ascertain that fact till the 4th, when he did give notice. The ignorance of this fact was his excuse for not giving earlier notice ; though he knew' where the acceptor and drawer both lived. The question of due diligence was left by Lord Ellcnborovgh to the jury, who gave a verdict for the plaintiff. Garrow moved for a new trial on the ground that due diligence had not been used in making inquiries for the defendant’s residence. But the Court said it was a question properly left to the jury, and they had decided it; and without expressing any opinion as to the diligence, refused a rule. This case therefore seems to decide nothing iu relation to the one before us. The case of Fisher v, Evans 5 Bin. 541, and a note in Ston/s edition of Chitty 236, c. the plaintiff’s counsel frankly admitted were not in accordance with his argument. Having noticed these authorities, let us look a moment at the facts in this case, and see what proof there is of due and reasonable diligence. It does not appear that any inquiry whatever was made in Boston, as to VarrelPs residence when the bill ivas protested for non-payment; though diligent search ivas then made for Barrell the acceptor; no inquiry appears to have been at any lime of any person, except of John £.. Haven; so that there is much 238 obscurity as to what was done; but there are facts in the case which shew what might have been done, and with every probability of success. Much may be gathered from the face of the bill itself. It is dated at New Orleans, and drawn on Barrell of York, Maine, and his acceptance is dated at York. Varrell requests Barrell to charge the amount of the bill u to account of brig Susan with or without further advice;” — and the bill is made payable in Boston in 60 days after sight. It is believed that every mercantile man would, from reading this bill, at once conclude that Varrell was the master, and Barrell the owner of the brig Susan; or at least that there was a connection in business between them; and that the anticipated funds for the payment of the bill would be in Boston on the arrival of the brig at that place. Now as the holders of the bill could at once know Barrett's residence was at York, where he always lived, we cannot think that reasonable diligence was used to ascertain the place of Varrell's residence, when we see that no inquiry, or attempt at inquiry, was made of him. There was every reason for believing that by applying to Barrell the desired information could at any moment have been obtained, —the distance between Boston and Yorkbeing only seventy miles. This omission is unreasonable inattention and negligence. In the above cited case of Bateman v. Joseph notice was given on the 4th instead of the 1st. But in the case at bar no notice was ever given. We will not say that the notice would have been too late, if Hitt, as soon as the hill was protested, had immediately written to York and ascertained of Barrell the defendant’s place of residence, and on receiving the intelligence, had forthwith sent notice to the defendant, — but nothing of this kind is done, nothing has been attempted by way of inquiry, except in one instance, of Haven, and when that was, is left uncertain. On the whole, we perceive no grounds on which the plaintiff can recover, and accordingly, there must be judgment on the verdict.