Barker v. Whitney

Garland, J. delivered the .opinion of the court. Thé plaintiff, as holder of two bills of exchange drawn by Gillingham & Co., of New Orleans, on L. H. Gillingham of Philadelphia, at sixty days sight, sues the defendant as the payee and endorser, claiming $3,500 with interest and damages. The bills were accepted by L. H. Gillingham, the one for $1500 falling due the 5th of July, 1839, and the other for $2,000 the 17th of the same month. The bills were purchás-ed-by Horace Bean & Co., of New Orleans, for Jacob Little & Co., of New York. The name of this latter firm is not [577] on either of the hills. They are both endorsed, “pay A. Benson & Co., or order; B. Whitney and again endorsed by by Benson &. Co., without recourse. When the bills became due, they were held by the Commercial Bank of Pennsylvania and protested for non-payment at the instance of that corporation. The protests are in the usual form, stating- the presentment, demand of payment, refusal to pay and protest. The Notary in his testimony says the notices to Gillingham & Co. were put in the post-office, in Philadelphia, on the days the bills were protested, directed to New Orleans. The notices to Whitney, the - endorser, whose residence he says was not marked on the bills or known to him, he enclosed on the same days to Little & Co., at New York, as directed. The notice on the first bill, is as follows : Philadelphia, July 5th, 1839. Lewis H. Gillingham’s acceptance of Gillingham & Co’s draft or Bill of Exchange, in your favor, and by you endorsed, for 1500 dollars, being this day due and unpaid, is delivered to me for protest, by the CommerciarBank of Pennsylt^iia, and you1 will be looked to for payment, of which you hereby have notice. T® Benjamin Whitney. EDWARD HURST, Notary Public and Attorney at Law, No 38 Walnut Street. The other notices, to both drawers and endorsers, are in the same form and words, except as to dates, sums and names. The notices for Whitney were sent, by Little & Co., to Horace Bean & Co., by whom they were delivered to Whitney on the 16th and 29th'of July. It is in evidence that the mail of the 6th of July, 1839, from Philadelphia, arrived in New Orleans on the 14th, that of the 7th, on the 16th, that of the 17th on the 25th, that of the 18th on the 26th. The mail from New York of the 8th arrived on the 17th of July, and those of the 18th, 19th and 20th on the 29th of the same month. The evidence of the clerk of Gillingham & Co., establishes pretty [578] clearly that they received the notices to them on the 14th and 26th. of July, two days in one case and three in the other, previous to the endorser being notified. This was in consequence of the notices, for Whitney, being sent to New York instead of New Orleans. is no particular form of notice of protest necessary, is statedeto”in-íieiftó the hfíl" of their liability and put them on their guard. be^sentln Two ways s one by the holder to all the parties to the bill; which will enure to any ^Tndorscr who shall pay it, in an action against his pire-the drawer j er may notify his immediate endorser, and he thenext,&c.; and one day is allowed to each notice10 ?nPthe post-office, &c. Various questions are raised in relation to the protest, the form of the notice and other matters, but the opinion we enter-as to sufficiency of the notice makes it unnecessary to examine any of the other points raised. T. , It is well settled that no particular form of notice is necessa-ry> so that enough is stated to inform the parties to the bill of liability and to put them on their guard. This notice the endorser must have sent to him to hold him responsible. It may be sent m two ways. One by the holder of the bill send-*n£ a nolice to all the parties to it, which notice will enure to the benefit of any endorser who shall pay the bill, in an action J 1 J against his predecessors or the drawer. The other is, by the ... . . . . . .. , , , , holder giving notice to his immediate endorser and he to the next> ai^so on to the drawer. When this circuitous mode is adopted one day is allowed to each party to deposit the notice 1 J _ r _ J i in the post-office, or send it by the ordinary conveyance. This mode the plaintiff claims to have the advantage of, and if the names of Jacob Little & Co. were on the hills, we should say hesitation he would he entitled to the benefit of it. But We are of opinion this rule applies exclusively to the parties whose names appear on the paper. There is no evidence that the Commercial Bank of Pennsylvania was the agent of Little an¿ j0 Benson & Co. wore agents, is of the weakest character ; and they had passed the hills by endorsements calculated to throw suspicion on them, which should have made any subsequent holder very cautious as to his proceedings. But supposing both Benson & Co. and the hank to have been the agents of Little & Co., they should, as prudent men, have informed them of the residence of Whitney, and if they did not know it, of the agents through whom the hills wore purchased, so that notices might be sent direct. This, if [579] not absolutely requisite, would have been more just towards all parties. A party whose name is not on the bill, though interested in it, is not entitled to the benefit of the rule allowing each party a day to send notice to the party before him. If the holder of a bill or note place it in the hands of his banker or agent, with his name on it, the agent is only bound to give notice of its dishonor to his customer, and he to the party next entitled to notice. But where a bill is protested and notice for the endorser sent to the third person, whose name is not on the bill, and he on the following day deposits it in the post-office to be sent to the endorser, the latter will be discharged by the delay. We think the true rule is laid down in the case of Flack vs. Green; 3 Gill & Johnson’s Reports of the decisions of the Supreme Court of Maryland, 474. That a person whose name is not on the hill, though interested in it, is not entitled to the benefit of the rule allowing each party a day to send the notice to the party before him. Much inconvenience, and we think serious difficulties would often arise, from allowing notices being sent through persons not parties to a bill, and it is easy to avoid them by requiring the names of all interested to appear. If the holder of a bill or note, place it in the hands of his banker or agent, with his name on it, the banker or agent, is only bound to give notice of its dishonor to his customer, and he to the party next entitled to notice, or to him whom he wishes to hold liable. Under such circumstances, the circuitous mode of giving notice would have high authority to sustain it; Bayley on Bills, Ed. 1826, p. 173, 174 ; 5 Mass. Rep., 167; 2 Johnson’s Cases, 1. But in a case where it is not shown that the holder of the bill at whose instance it was protested, was the agent or banker of the party claiming to be interested, the name of whom is not on the bills or on the record, in any manner, we do not feel authorized to relax the strict rule of law in relation to notice, in favor of a party who has taken the bill, since it was protested, with a full knowledge of all the circumstances, and without the endorsement of the party said to have so been interested. The plaintiff insists strenuously on a promise to pay the bills after the notice of protest. We have examined the evidence in support of this claim, and do not think it is sufficient of itself to sustain the judgment of the Commercial Court. Upon a full examination of the case, as it now stands before us, we do not think the plaintiff is entitled to recover. The judgment of the Commercial Court is therefore annul [580] led, avoided and reversed, and ours is one of non-suit against the plaintiff with costs in both courts.