New Orleans Canal & Banking Co. v. Briggs

Morphy, J. This suit is brought against E. L. Briggs as the second endorser of a note for $1500, drawn by Lewis Borde-lon to the order of, and endorsed by D. T. Orr, and made payable twelve months after its date, at the office of discount and deposit of the New Orleans Canal and Banking Company, at Alexandria. The defendant pleaded the general issue, and had a judgment in his favor, from which the plaintiffs have appealed. The record shows, that the note sued on, which bears date the 10th of January, 1842, was duly protested on the 13th of January, 1S43, after presentment and demand at the place of payment mentioned in the body of the instrument; and that, on the same day, the notary who made the protest notified E. L. Briggs thereof, by depositing a notice, for him in the post-office at Alexandria, addressed to him at his domicil near Mansura, parish of Avoyelles, Louisiana. It is shown, that there are two post-offices in the parish of Avoyelles, one at Mansura, and one at Bordeau. There is some variance of opinion among the witnesses, as to-which of these offices is the nearest to the residence of Briggs, but the difference of distance between the two, if there be any, is but slight; and in this case altogether immaterial, as it appears that he received letters and papers from both. It is even shown, that he received most of his letters from the Man-sura office in 1843; and his brother testifies, that there is more travel by the way of the Mansura office, and that he would, if [176] writing to E. L. Briggs, address him at Mansura, as he received most of his letters at that office. Under this evidence, we are at a loss to understand how the endorser could have been relea sed from his liability below. In the cases of The New Orleans and Carrolton Railroad Company v. Robert, (9 Rob. 130,) in Mead v. Carnal and another, (6 Rob. 73,) and in that of Follien et al. v. Dupré et al., (11 Rob. 454,) this court held, that the sufficiency of a notice to an endorser must not be made to depend on a slight difference in the admeasurement of the distance of two post-offices located in his neighborhood, and that the notice is good, if sent to the office where it is probable he will receive it earliest. In the present case, a notice sent to either office would perhaps have been sufficient; but that sent to Mansura is certainly good, as it is shown that the defendant received most of his papers there. Hyams, for the appellants. Edelen, for the defendant. It is, therefore, ordered and decreed, that the judgment of the District Court be reversed, and that the plaintiffs recover of the defendant E. L. Briggs, the sum of fifteen hundred dollars, with interest at the rate of eight per cent, per annum, from the 13th of January, 1843, until paid, with five dollars cost of protest, and the costs of suit in both courts.