Roberts v. Mason

COLLIER, C. J. — The only question raised in this case is, whether the instruction .of ihe judge of the county court to the jury, is conformable to law. Where a note designates, upon its face, a certain.place of payment, a demand by the holder at the place designated, is a condition.precedent to an endorsees liability. (Roche v. Campbell, 3 Camp. Rep. 247; Sebree v. Dorr, 9 Wheat. Rep. 558; Bank of the U. S. v. Smith, 11 Wheat. Rep. 171; Irvine v. Withers, 1 Stewart’s Rep. 234.) In Erwin v. Adams, (2 Miller’s Lou. Rep. 318) it was considered incumbent upon the holder of paper payable ata particular place, there to present it for payment, but if the place ceased to exist, a demand would not be regarded as a prerequisite to the light of recovery. Thoughiit is clearlysettled,'that as against the-endorser, where a note is payable at a certain place, it must be there presented for .payment, "yet, -when it is made.payable-at batik,-and'the note' is placed in the.hands of the cashier of that bank for collection, there-is no necessity for his makings specific-or okmorous demand. The legal requirements as to presentment and demand, [376] are complied with if the note is in bank at the time it falls due, in the hands of the cashier, who was ready to receive the money (Shaw v. Reed, 12 Pick. Rep. 152; Ogden et al. v. Dolbin & Evans, 2 Hall’s Rep. 112.) Let us apply the positions we have laid down, to the facts in the record. The note on which the plaintiff is sought to be charged as an endorser is by its terms, “ negotiable and payable at the office of discount and deposit of the Bank of the United States atMobile.” Theproof shows that the place of pay ment ceased to exist, previous to the maturity of the note; the office of discount and deposit being sold to the Bank of Mobile, and this latter institution, “ the agent of the Bank of the United States.” This being the case, it was impossible for the holder to have presented the note for payment at the place designated, on the day on which it became due, and there was no necessity, as we have seen, to have deposited with the cashier at an earlier period. A demand at the Bank of Mobile, would have availed nothing; the terms of the contract did not impose upon the defendant in error, such a duty, nor did the transaction between that bank and the office of discount and deposit, furnish any just ground to expect that payment of the note would there have been met. The office of discount and deposit, as may be inferred from the proof stated in the bill of exceptions, was subject to the Bank of the United States; for we are explicity informed the “ office of discount and deposit of the Bank of the United States, at Mobile, was sold and disposed of to the Bank of Mobile, and that the said Bank of Mobile, then and there, to wit: before the fourth of March, 1836, bceame the agent of the Bank of the United States, for settling the affairs of the office of discount and deposit of said Bank, at Mobile.” By the sale and disposition of the office of discount and deposit, we are to understand that the Mobile Bank became the proprietor of the bills, notes and other credits, securities, etc. which it then held, or was entitled to. And by what subsequently follows in the recital of the evidence, we think it clearly inferrable, that this sale was in trust for the Bank of the United States, and made the Mobile Bank its agent, for settling the [377] affairs of the office of discount and deposit. Now it cannot be insisted that the note, on the endorsement of which, the plaintiff in error is attempted to be charged, was a subject of the sale to the Bank of Mobile, or its collection within the scope of the agency' conferred upon that bank, by the Bank of the United States. No property, either general or special in the note, had vested in the office of discount or deposit, either by a transfer in the ordinary course of business, or by placing the paper therefor collection, it then did not pertain to its business; and by constituting the Bank of Mobile, “the agent of the Bank of the Uni-’ ted States, for settling the affairs of the office of discount and deposit of that Bank at Mobile,” the duty was not imposed upon the defendant in error, of demanding payment of the agent. The law does not require that the holder of endorsed paper, shall at all events demand payment, or give notice in order to charge the endorser. It is enough that due diligence has been used, though no demand has been made. (Lanusse v. Massicott et al., 3 Martin’s Rep. 261.) An endorsee is not bound to prove a demand on the maker, where he absconds before the note falls due. (Putnam et al. v. Sullivan et al., 4 Mass. Rep. 45.) Nor is the holder of a note bound to make a demand where the maker has femoved from the State, in which he resided at the time of making the note. [Gist. v. Lybrand, 3 Ohio Rep. 307; McGruder v. The Bank of Washington, 6 Wheaton’s Rep. 140.] And it has been holden where the maker is a seaman without any domicil in the State, who goes on a voyage about the time the note falls due, no demand on him is necessary to charge the endorser. [Barrett v. Wills, 4 Leigh’s Rep. 114.] We cite these cases merely to show that the law does not always require the holder of paper to demand payment of the maker, in order to charge an endorser, where no particular place of payment is designated — all it enjoins upon the holder, is to use due diligence. But the note which was endorsed by the plaintiff, did not impose upon the endorsee, the necessity of making a personal demand of the makers, but only a presentment on maturity at the place named in its face. This being impracticable [378] for the reasons already slated, was the holder bound to call on the makers for payment? We think not. The contraet of endorsement was in law, an agreement on the part of the plaintiff in error to pay to the defendant, if the note should be duly presented for payment at the office of discount and deposit of the Bank of the United States, at Mobile, and legal notice be given him of the default of the makers, in the event of their failure to provide for it. One of the conditions on which the liability of the plaintiff depended, it became impossible to perform, in consequence of the office of discount and deposit ceasing to exist previous to the maturity of the note. But it is not pretended that, that occurrence was produced by the instramentality of the defendant, and it cannot be held to interpolate the eontractof endorsement, so as to make the endorser’s liability, depend upon the performance of a condition by the endorsee, which did not constitute a part of the original contract. There was then no error, in the refusal of the circuit court to instruct the jury, that to charge the plaintiff as endorser, a demand should be made of the maker who resided in Mobile. This view of the ease renders it entirely unnecessary to consider the effect of the act of January, 1S36, entitled an act “ to amend the charter of the Branch of theBankof the State of Alabama, at Mobile, and for other purposes.’’ It is immaterial whether that act, so far as it makes it Lawful for the Branch of the State Bank, to receive for collection, &c. any note or bill made payable at the office of discount and deposit of the Bank of the United States, at Mobile, interferes with the obligation of contracts. The presentment of the note for payment there, in the present case was an act of supererogation, and of consequence ineffectual for any purpose. The result of our opinion is, that there is no error in the proceedings of the county court, and its judgment is consequently affirmed*