Philipe v. Harberlee

B. F. SAEEOLD, J. The appellant was the payee and endorser of a negotiable note drawn by Wolffe, Price & Go., due sixty days after date, and payable at the Mobile Savings Bank. The note was the property of the appellee, who lived in New Orleans, and was sent by him, through Mr. Granger, to Mobile for sale or collection. Granger placed it in the hands of Petty & Sawyers for that purpose. They, not selling it, left it at the bank for collection, where it was delivered to a notary, who, at the request of the cashier of the bank, presented it to the paying teller of the bank for payment, and on being answered “ no funds,” protested it, and gave notice through the postoffice to the endorser residing in Mobile, where the bank was located. The notice was sent on the 13th of February, the day the note became due, and was received by the endorser on the 16th of the same month. The appellant objects to the charge of the court, that the notice of protest given to the indorser through the postoffice was sufficient, if the holder of the note resided out of the State, notwithstanding his agent who had it for collection lived in Mobile. He admits that this is in accordance with the adjudications in this State, but insists that it is different elsewhere, and especially in the federal courts, under the authority of Bowling v. Morrison, 6 How. 248. In that case, the decision was emphatic that the bank, which had the note for collection, and the notary who made the protest, were holders for the purpose of giving notice; and that where an endorser lived in the same town or city where the bank was located and the demand’made, and where the note was payable, the notice to him must be given personally, or at his residence or place of business. This is certainly high authority, and extensive in its operation, applying to all cases of foreign commercial paper brought under the cognizance of the federal courts. We might conform the decisions of this court to that of the United States supreme court, for the sake of uniformity, if the people of the State had not transacted their [608] business in compliance with a different rule announced by their own tribunals, upon whose consistency they have a right to rely. — Gindrat v. Mechanics Bank of Augusta, 7 Ala. 324; Greene v. Farley, 20 Ala. 324; Bibb v. McQueen, 42 Ala. 408 ; Tyson v. Oliver, 43 Ala. 455. The law is well settled, that if the holder and the indorser reside in the same town or city, the notice must be personal, or left at his residence or place of business, but if not, it may be sent by mail. Is the agent for collection, or the notary, in any legal sense the holder ? They have no such beneficial interest as will entitle them to sue on the paper, and are not responsible otherwise than as an agent or officer. The amount of the notary’s bond is incompatible with his responsibility for every failure to fix the liability of an obligor. In addition to this, the postoffice has become, in most cases, the surest and speediest mode of communication. In cities where a penny post is established, the carriage of letters is entrusted to persons whose exclusive business it is, and whose liability for negligence can better be enforced than that of a casual or special messenger. We are not persuaded that the rule in this State is not as good as any other. As to the consideration necessary to bind the endorser, the evidence shows that the principal debtor was indebted to the plaintiff for merchandise sold for him which had not been accounted for, and that the creditor was pressing for payment when he received this note, endorsed by the appellant, and payable in sixty days. Nothing is proved in reference to the extinguishment of the prior indebtedness by the note, except what is indicated by the acts of the parties as here related. The note imported a consideration, and was payable at a future day, suspending the remedy upon the original debt. That suspension was a consideration for the new promise. — Rutledge v. Townsend, Crane & Co., 38 Ala. 706. There was no error in amending the judgment by correcting the mistake in the calculation of interest. — Revised Code, § 2807. The judgment is affirmed,