Knott v. Venable

JUDGE, J. 1. Scott, the drawee of the bill in this case, is not a party to this suit; and no question arises as to his liability on the alleged ground that Knott acted solely as his agent in making the purchase of the cotton, and in drawing the bill. Whether parol evidence might be received, and if so, to what extent, to fix such a liability upon Scott in an appropriate proceeding for that purpose, we need not now determine. The question is, as to the liability of the defendant below, as drawer, notwithstanding his agency, and whether the circuit court erred in the charge given relating to this question. The court charged the jury, that in determining whether the defendant below acted for himself, or as the agent of Scott, in drawing the bill, “nothing could be looked to but the draft itself; and that the legal effect of the draft was, that the defendant was personally bound.” Irrespective of the question that the bill of exceptions [194] does not purport to set out all the evidence in the cause» and that therefore we should presume in favor of the correctness of the charge, we remark, that nothing appears upon the face of the draft, nor does the record show there was any evidence before the jury, tending to show that it was the intention of the parties, in the execution of the draft, not to bind the defendant personally, but Scott alone. Whether under the circumstances — there being nothing upon the face of the draft to authorize it — parol evidence would have been competent or not, to show such an intention, or understanding, we do not decide. But see the following authorities : Lazarus v. Shearer, 2 Ala. 718 ; Drake v. Flewellen, 33 Ala. 106; May v. Hewitt, Norton & Co., 33 Ala. 761; McTyer v. Steele, 26 Ala. 487; Seay v. Marks, 23 Ala. 532 ; Roney's Adm'r v. Winter, 37 Ala. 277 ; Crutcher v. Memphis & Charleston Railroad Company, 38 Ala. 579 ; Leadbetter v. Tarver, 5 Maule & S. 349. The testimony, it is true, did tend to show that the defendant acted as the agent of Scott in the transaction which gave rise to the draft. But this agency did not exclude, nor was it inconsistent with that personal liability on the part of the defendant which the language of the draft imparts. This charge of the court, therefore, when construed in reference to the testimony, contains no error. This view also disposes of the first and second charges requested by the defendant, and refused by the court, and which relate to the same question. 2. A bill of exchange, payable at sight, whether foreign or inland, is entitled to days of grace, and must be presented for acceptance within a reasonable time, before payment thereof can be demanded. — Hart v. Smith, 15 Ala. 807. And what is a reasonable time, depends upon the circumstances of each particular case. — Chitty on Bills, m. p. 278, and authorities cited in note 1. If acceptance be refused, on a proper presentation of the bill for that purpose, it is incumbent upon the plaintiff, in an action against the drawer or indorser, as a pre-requisite to his recovery, to prove due diligence in giving notice. A protest is not necessary by the law-merchant, to fix the liability of the parties to an inland bill — and such is the character of the [195] bill in this case. — Code, § 1549. A demand of acceptance, or payment, and notice of refusal, is sufficient. — Jordan v. Bell, 8 Port. 53; Evans v. Gordon, 8 Port. 142 ; Leigh v. Lightfoot, 11 Ala. 935. But to recover damages on such a bill, it must be protested, and the fact averred in the declaration. — Jordan v. Bell and Leigh v. Lightfoot, supra. It is not contended that the bill in this case was not presented for acceptance within a reasonable time; but tbe position is taken tbat due notice of its dishonor was not forwarded to tbe drawer. Tbe facts are, tbat about tbe hour of ten o’clock a. m.» Monday morning, the 27th of March, 1865, the payee presented tbe bill to tbe drawee, at bis place of business in tbe city of Mobile, for acceptance, and tbat tbe drawee refused to accept or to pay it; tbat tbe payee immediately banded-tbe bill to a notary public, who, on tbe next day, Tuesday tbe 28th, caused it again to be presented, and protested for non-acceptance; and tbat tbe drawer did not ask for time to consider, nor was any reason given for not protesting sooner after acceptance was refused. Tbe certificate of tbe notary shows, tbat on tbe day of tbe protest, be placed in tbe post-office at the city of Mobile, to be mailed, a notice thereof, directed to R. F. Knott, tbe drawer, at Tuskaloosa. In cases where tbe parties reside at a distance, and tbe ordinary mode of communication is by general post, tbe universal rule now seems to be, tbat the bolder, or party to give tbe notice, must forward notice by tbe post of tbe next day after tbe dishonor, or after he received notice of such dishonor; and if there be no post on such next day, then be must send off notice by tbe. very next post tbat occurs after tbat day; but be is not legally bound, on account of there being no post on tbe day after be receives notice, to forward it on tbe very day be receives it. Chitty on Bills, m. p. 486 ; Bray v. Hadman, Maule & S. 68; Geill v. Germany & Blugg, Mood. & M. 61. See, also, Whitman v. Farmer's Bank of Chattahoochee, 8 Fort. 258; Crawford v. Branch Bank at Mobile, 7 Ala. 205. Furthermore, if tbe notice be placed in tbe proper post-office in due time, it is legal diligence ; the bolder or party to give [196] the notice, not being responsible for the irregularities of the mail. — Ellis v. Com. Bank, 7 Howard, Miss. 294 ; Lord v. Appleton, 3 Shep. 270; Bell v. The Hagerstown Bank, 7 Gill. 216. The holder, in this case, might have forwarded notice of the dishonor by post, on the next day, the 28th, after the refusal to accept, without protest; but though an inland bill, it was his legal right to have it protested; and the notice of protest having been placed in the post-office properly directed, on the same day, the 28th, that the notice of dishonor without protest would have been required to be mailed, we hold that legal diligence was used in giving notice. We do not consider it necessary to determine the question, whether, under the particular facts of this case, the notice would not have been sufficient, if it had been mailed on the 29th, the day after the -protest. It results from what we have said, that the circuit court did not err in the refusal to give the third, fourth, and fifth charges requested by the defendant. 3. The third affirmative charge of the court, as to the evidence, the jury might look to in determining the value of the cotton at the time and place of sale, seems to have been predicated upon the evidence designated in the charge, and which had gone before the jury, without objection. If there was error in this charge, it was not prejudicial to, but in favor of the defendant. As to the sixth and seventh charges requested by the defendant, relating to the same matter, no action of the court appears to have been had thereon, nor is there any exception -in relation thereto; we, therefore, do not consider them. Judgment affirmed.