Garver v. Downie

By the Court, Sanderson, J.: If, at the time the note was dishonored, the notary knew that Birdseye was temporarily absent at Washington, D. C., and that his residence was still at Nevada, and his place of business at the banking house of Birdseye & Co., and such were the facts, the service of the notice of dishonor by mail, addressed to him at Washington—he never having received it—would not be sufficient. But we do not so read the finding. We understand the Court below as finding in effect— taking the finding as a whole—that at the time of the dishonor the notary did not know the then residence of Birdseye except from surmise, founded upon his knowledge of his previous residence at Nevada and the public rumor to the effect that he had gone to Washington to obtain a Federal appointment; that being in doubt, and unwilling to act upon knowledge so unsatisfactory—to him, at least, as it would seem—he went to Felton, Birdseye’s partner and attorney in fact—although the latter fact was not then known to him—and Dawley, one of the clerks of the firm of Birdseye & Co., for further and more • satisfactory information as to Birdseye’s, then residence, and the proper place at which to serve him with the notice of the dishonor; that he stated to them the object of his inquiry, and that he was informed by both, that Birdseye was residing at Washington, and by Dawley, that a letter directed to Birdseye at Washington would reach him by mail—that Washington was the proper place to which to send his notice, and that a notice, left at the banking house in Nevada would probably never reach him; that the notary, acting in good faith upon this information, sent the notice by mail, addressed to Birdséye at Washington. Snch being our understanding of the finding, we think the notice was legally served, notwithstanding Birdseye never received it, and his residence was in fact at Nevada at the time it was mailed. Said Bronson, J., in the case of The Bank of Utica v. Bender, 21 Wend. 645: “It is not absolutely necessary that notice should be brought home to the indorser, nor even that [182] it should be directed to his place of residence. It is enough that the holder of a hill makes diligent inquiry for the indorser and acts upon the best information he is able to procure. If, after doing so, the notice fail to reach the indorser, the misfortune falls on him, not on the holder. There must be ordinary or reasonable diligence—such as men of business usually exercise when their interest depends upon obtaining correct information. The holder must act in good faith, and not give credit to doubtful intelligence when better could have been obtained.” In that case the holder, not knowing the residence of the indorser, made inquiry of the maker, who told him that the indorser resided at Ohittenango, whereas he in fact resided at Manlius and received his letters from the Hartsville Post Office, which was in the latter town. The notice was sent by mail, addressed to the indorser at Ohittenango, and was held sufficient to charge him. Here the notary, being in doubt and uncertainty as to the residence of Birdseye, went to the persons who, of all others, were the most likely to know what were the intentions of Birdseye at the time he left Nevada, and where he was then residing—persons, so far as the case shows, every Avay worthy of belief—and asked, in effect, if Birdseye still resided in Nevada, or elseAvhere, and if so, where. He was positively assured by them that he did not then reside in Nevada, but at Washington, and that the latter place was the proper place at which to serve him. That information was such, in our judgment, as a prudent business man would he justified in acting upon Avithout further inquiry. Whatever may have been his preAÚous notions as to the residence of Birdseye, the notary must thereafter have believed them unfounded if they pointed toward Nevada. Moreover, this information was afforded by one who was the agent of Birdseye and authorized to transact all his private business for him during his absence. The information was therefore in effect given by Birdseye himself, and he has no right to complain that credit [183] was given to it by the notary. (Catskill Bank v. Stall, 15 Wend. 364; 18 Id. 466.) Judgment affirmed. Mr. Justice Ehodes did not express an opinion.