Nevius v. Bank of Lansingburgh

Campbell J.: In this case plaintiff in error was sued below on a guaranty of a negotiable note which had been endorsed to him, and also as endorser of another note; and judgment was rendered against him on both. The guaranty was upon a note which was endorsed by the payee to him without recourse, and was in these words: “For value received I hereby guaranty the payment of the balance due on the within note. J. S. Nevius.’’ It was objected that this was not shown to be a contract made with the plaintiff below, but the objection was overruled. We think there was no error in the decision. This promise is general in its form, and is like that in Thomas v. Dodge, 8 Mich. 51, except that the guaranty there was of collection and not of payment. We there held the want of a person named in the contract of guaranty as promissee was no objection to the validity of the contract. The contract in the present case becomes fixed whenever any one takes it upon the guarantor’s credit; and without determining between the conflicting decisions in our reports upon the negotiability of such paper, we are satisfied [550] that a presumption arises from possession, which will prevail in favor of the holder, at least until rebutted by showing that it had previously been operative in other hands. The plaintiff in error was held liable as endorser of another note; and the questions presented on that note arise out of an alleged want of proof that the proper steps had been taken to charge him as such. The person who had charge of the note, which was made by one Jacob Clark, testified upon this point as follows: “At the time it became due I went down to the township of Gaines, to find Jacob Clark’s last place of residence; the note was not paid; after which I protested it.” There is no further proof concerning demand or refusal to pay, but the witness testifies that on the next day he deposited a proper notice of dishonor in the post office at Grand Rapids, directed to Nevius at Grand Rapids, and that subsequently Nevius admitted that he received the notice two days thereafter. It was in evidence that Grand Rapids was his nearest post office, and that he lived two miles from the post office; but it- did not aijpear whether his residence was within or without the city. Nevius asked the Court to exclude the note because there was no sufficient proof of dishonor and notice; but the Court held the proof sufficient. We think there was no legal proof of the dishonor of the note. Tryon, the witness, does not state whether he found Clark or not; or whether he made any demand. He does not testify concerning Clark’s residence or his knowledge of it, nor whether, if no personal demand was made, there was any valid reason for the omission. The case is also defective upon service of notice. It does not appear that Nevius did not reside in Grand Rapids, and if he did he was entitled to personal service or service at his residence or place of business. Had the proof shown that he resided out of the city we think the service would have been regular. The sufficiency of service [551] upon facts shown is a question of law; and any rule which leaves it indefinite must always leave parties in doubt concerning their legal rights and liabilities. It is doubtless as easy to serve a notice personally a little beyond a city line as within it; but if any extension is made requiring service beyond, the law must determine how far beyond such service is required, and for this we have no rule furnished. 'Any rule adopted must be in some respects an arbitrary one, and we think the established one is the safest. We are aware that in Newberry v. Trowbridge, 4 Mich. 391, upon a supposition that the post office laws imposed no duty to deliver any letters except those transmitted by mail, it was held service could not be made by depositing a letter in the office which was not to be sent to another office. This being a question of United States law, we think the decision in the case of the Bank of Columbia v. Laurence, 1 Pet. 578, sufficiently declared that such a use of the post office is lawful. Provision was made for postage on drop letters as early as 1825 (Act of 8d March, 1825, § 36), and now postage is required to be prepaid. There can be no doubt of the duty of postmasters to deliver such letters. And as regards the question of convenience, such a method is entirely reasonable. A person is more likely to receive a drop-letter than one transmitted to him from a distance, because he .escapes the risks of the road. It was claimed in this case that, inasmuch as the notice was actually received, all further proof was unnecessary. But the proof did not show it to have been received the day after the dishonor of the note; and the case must stand upon the sufficiency of the delivery through' the post office. The judgment must "be reversed, with costs, and a new trial must be ordered. The other Justices concurred.