U. S. National Bank v. Burton

The opinion of the court was delivered by Veazey, J. This case was tried by the court without a jury, and judgment was rendered for the plaintiff, to which the defendant Sowles excepted. The ' latter now alleges several grounds of error in the judgment, and insists upon several exceptions to the rulings in the course of the trial. One ground of defence urgently pressed in argument, is that the case does not show any notice of dishonor to these defendants. I. In this bill of exceptions is a statement in effect that notice was given by the notary who protested the draft; and the notice is referred to in the bill and is sufficient in all respects if it was given at the instance of the bank which protested the draft. To this extent no question is made by the defendant Sowles; but he says as it is not stated in the bill of exceptions that the notice was given by the notary as the agent of the bank, it amounts to nothing as a notice. It is true the burden is on the plaintiff to prove notice, and that it was in due time, and was by some party to the instrument; but it is also settled that the holder may act, in giving notice, by an agent, and in his name. Byles Bills, c. 22, and cases there cited. If, therefore, there was any evidence tending to show that the notary acted in behalf, and by authority, of the bank, the judgment for the plaintiff must be sustained on this point. We think there was such evidence. The case shows the notary was employed by this bank to protest the draft; that on the same day a notice of dishonor was made and forwarded by him. The notary had no motive to act in his own behalf. The duty [433] rested on the hank to give notice. These facts and circumstances seem to us sufficient to warrant the inference which the judgment implies the County Court made. If this had been an inland, not foreign, draft, the certificate of protest which sets forth the fact of notice to the drawers, would under our statute have been evidence of notice. R. L. s. 2006. There is authority to the same effect under the law merchant, as to foreign bills or drafts. 2 Parsons, 498. But as there is strong authority against this view, we prefer to let the case on this point stand on the ground first stated. We think the custom of notaries to give notice of dishonor when they are employed to make the protest, is so general, the giving of the notice might properly be regarded'as an incident of the employment without express request or direction, but we cannot properly regard the fact of such custom as it is not brought into the bill of exceptions. II. Another ground of defence claimed is that the envelope containing the notice was improperly addressed. The draft was dated at St. Albans, Vt., and was signed “Burton & Sowles.” The envelope was addressed “O. A. Burton, Edward A. Sowles, St. Albans, Vt.,” the name of O. A. Burton being written above the name Edward A. Sowles. Burton & Sowles were co-partners, and were the persons named, O. A. Burton and Edward A. Sowles. The general rule is that when the notice is to be sent by post, care must be observed that the letter be accurately addressed and directed; for any mistake occasioning delay, and which might have been avoided by due care, will deprive the holder of all remedy against the party to whom the notice ought to have been given; Story Prom. Notes, s. 345. We think it cannot be said as matter of law that the address as made, instead of “ Burton & Sowles,” was fatal. It does not appear that any one was misled, or that there was any delay by reason of the address including the Christian names or the initial letters of the Christian names of these [434] men. They and they only constituted the firm of Burton & Sowles. The place where they lived or did business is not a large city, but a village, and the transaction indicates they were men of business prominence. It is stated in the exceptions, that Sowles was the president of a bank in St. Albans. The letter or envelope must be “ accurately directed and addressed.” This is the tenor if not the precise language of all the books, the same particularity being required in the direction as in the address. Yet it is not every change or mistake in the direction of a notice.that vitiates it. “ If the error is merely nominal and is not calculated to mislead, or does not mislead the party, the mistake will not be fatal. ” Story, s. 347. The word “accurately” as applied to direction and address of notice of dishonor, has not been so defined that a court can in each case say as matter of law just what alteration constitutes an inaccuracy. A change may be so violent as to exclude the idea of accuracy, or so slight as to exclude the idea of inaccuracy. In such cases the court should so hold. Alterations intermediate these extremes would seem to involve a mixed question of law and fact. In the case at bar it cannot be said that the alteration in the address was so great as to exclude the idea of accuracy. Error, therefore, cannot be predicated on the judgment on account of the alteration in the address. III. Another objection to this judgment is that the suit was brought against the defendants individually,' whereas the proof is that they were partners. Sec. 1391 R. L. is an answer to this objection, wherein it is provided that no question of variance between the pleadings and the evidence shall be heard except such as the exceptions show were raised and passed upon in the County Court, unless such variance is material and substantial, affecting the right of the matter. The variance complained of is not of that character, and no question was raised below. [435] IV. The first indorser of this draft, viz.: the St. Albans bank, received the' notice of dishonor to the drawers in due course through the subsequent indorser, the plaintiff, which was forwarded to the drawers, the defendants, by the St. Albans'bank, by depositing the same on the day it was thus received, in the post office at St. Albans, addressed to the defendants. Question is made that this resort to the mail by the St. Albans bank, instead of personal notice, or written notice' at the dwelling-house or place of business, constituted laches. It is now settled law as a general proposition, that the method of sending notice through the successive indorsers, as was adopted in this case, has the same effect as though the notice of dishonor was sent directly to each indorser. Eagle Bank v. Hathaway, 5 Met. 212; Butler v. Duval, 4 Yerger, 265; Farmer v. Rand, 16 Me. 453; Byles Bills,* 226. The contention here is that as the St. Albans bank was located in the same place where the drawers resided or did business, the proof of the deposit of the notice in the mail is not sufficient to charge the defendant without proof of the reception by them in due time. The general rule is, that when the parties reside in the same city or town, the notice, verbal or written, must be personal, or written notice must be left at the dwelling-house or place of business; and notice by mail will be insufficient unless its reception in due time is proved. But if the instrument is protested at a place different from the residence of the party who is sought to be notified, the mail may be used. Daniels, s. 1005, and cases there cited. And it has been held that it may be used by an indorser, who has received notice by mail, in sending notice to a previous party residing in the same town, provided the notice is redeposited on the sanie day it was received, so that it may reach the previous party on the same day it would have been received by him if originally addressed to him and had not been withdrawn from the post office and remailed. [436] Eagle Bank v. Hathaway, 5 Met. 213; Manchester Bank v. Fellows, 28 N. H. 302; Hartford Bank v. Stedman and Gordon, 3 Conn. 489; Shelburne Falls Nat. Bank v. Townsley, 102 Mass. 177. We think this rule is at least strict enough, and it fully covers the point as it comes up in this case. ' It being held that all the requirements of the law as to giving notice of dishonor to the drawers were complied with, their liability is established although they may not have received the notice in due time to charge them if these requirements had not been complied with. V. The defendant further says the plaintiff cannot recover because this draft was indorsed to “ E. G. Sherman, Cas.,” instead of to the plaintiff bank, of which Sherman was cashier. It is the settled law of this State, contrary to the general commercial law, that an action upon a promissory note may be maintained in the name of the party beneficially interested, where the note is in terms made payable to his agent as treasurer, cashier, etc. R. & B. R. R. Co. v. Cole, 24 Vt. 33. YI. Objection and exception was taken to the admission of certain evidence. We think it requires no discussion to show that all such evidence was admissible for some purpose, and it does not appear that it was used for illegal purpose in any instance. Judgment affirmed.