Jones v. Wardell

The opinion of the Court was delivered by Rogers, J. This is a suit on a bill of exchange dated New York, drawn by the defendant, William D. Jones, on Abraham H. Jones, made payable to the order of Charles Wardell, by him endorsed to the Syracuse Bank, and by the Syracuse Bank to the Bank of Rochester. On the 28th December 1841, the bill was protested for non-payment. On the 3d January 1842, notice of the dishonour was mailed in the city of New York, which reached Philadelphia, where the drawer resided, on the 4th January 1842. In consequence of a mistake, there being two persons of the same name, it did not reach the defendant until the 8th January 1842. By whom, or in what manner, or to whom it was transmitted to the city of New York, or by whom it was mailed to Philadelphia, does not appear. The supposition^ that the business was transacted in the usual course; that is to say, that the notice of protest was sent to the Syracuse Bank, by them to the payee in New York, by whom it was sent by mail to the drawer, who resides in Philadelphia. The Bank of Rochester, to whom it was sent for collection, in the absence of all information to the contrary, had a right to suppose that the parties to the bill lived in New York; it would therefore be unreasonable to require that the notice should be sent direct to the drawer: and this explains the reason of the direction which the notice took. As a matter of law, therefore, we incline to the opinion that this was a reasonable notice of the dishonour of the bill; for, allowing one day to each of the parties to the bill, and one day for Sunday, which was an intervening day, greater diligence could not reasonably be required, when it is remembered that Rochester is four hundred miles from New York, and consequently five hundred from Philadelphia, where the drawer resided. The time it reached the defendant is no consequence, as the delay arose from a circumstance which the payee could not control; it is sufficient proof of notice that it was in due time sent in a letter, without proving that the letter was received. Smyth v. Hawthorn, (3 Rawle 356). All the plaintiff had to do was to set out the bill, which made it incumbent on the defendant to state in his affidavit the facts on which he relies for his defence, and unless there be a good defence, the plaintiff is entitled to judgment. In Gurly v. The Gettysburg Bank, (7 Serg. & Rawle 324), it is held that the reasonableness of notice to an endorser of the nonpayment of a promissory note, is a question of fact for the jury. This case was decided in 1821; but since then,.in consequence of the facility of communication arising from regular mails, and the interna] improvements of the country, sounder notions have been entertained. Where there is a question as to the facts, the jury [402] must decide: but where the facts are conceded, the court must determine whether the notice is reasonable. This was the law, as laid down by Lord Mansfield in Tindal v. Brown, since adopted and recognised by this court in Brittain v. The Doylestown Bank, (5 Watts & Serg. 98). Judgment affirmed.