Carmena v. Bank of Louisiana

The judgment of the court was pronounced by 1 SiiDEim, J. Carmena, being the holder of a bill of exchange drawn by [370] jP. Doherty cm, and accepted by, Caldwell & Hickey of New Orleans, and ent^or3e^ by S. L. Doherty and A. Doherty, brought suit against the endorsers, and was nonsuited, upon grounds set forth in the decision of the former Supreme Court. See 7 Rob. p. 57. Carmena then instituted this suit in which he seeks to make the bank liable for the amount of the note, as having negligently performed the duty of collection. It appears that Carmena entrusted the note to the cashier of the branch of the bank at St. Francisville, who sent it to the mother bank at New Orleans, who placed it at maturity in the hands of á notary usually employed by the bank. The notary made presentment to the acceptors and protest, and sent a notice of protest to the cashier at St. Francisville by the first mail, together with the notices for the various other parties under cover to the cashier. He received them in due course of mail, and, on the morning of the succeeding day, deposited the notices for the various antecedent parties in the post-office at St. Francisville, addressed to them at St. Francisville. It appears that, the endorsers live in the parish of West Feliciana and in the country; that S. L- Doherty resides about twenty miles from St. Francisville, and A. Doherty about eighteen miles from said town; that the post-office at Laurel Hill in that parish, was much nearer to the residence of A. Doherty than the one in St. Francisville, and that the post-office at Pinckneyville, in the State of Mississippi, is much nearer the residence of S. L. Doherty, than the one in which the notice was deposited. It is also proved that St. Francisville was the post-office at which the drawer and indorsers usually received their letters, and that they had ordered the cashier to put their letters in that office, informing him that they seldom went to other offices. Before considering the legal consequences of putting the letters into the post-office at St. Francisville thus addressed, it is necessary to consider the circumstances and acts anterior to that event, and whether their legal consequences are such as to have impaired the liability of the indorsers. Hall was, it is true, a mere agent for collection; but he was also last indorser upon the draft. He being an indorser, though merely an agent, the law accorded him the same interval to notify adtecedent parties as though he had been an .ordinary indorser. Now notice was sent to him by the first mail after protest. On the morning of the day after he received notice in due course of mail, he mailed notices to the indorsers. So far as the question of time, which we are now considering, is involved, this was in time. Judge Story, in his treatise on promissoiy notes, after noticing the familiar rule that a party who has received notice is entitled to the whole of the day on which he receives it to prepare his notice, and that it is sufficient that the notice be put into the post-office early enough for the post of the succeeding day, (§ 234, and see also the authorities there cited,) then proceeds to consider the case of an agent: “ The benefit of this rule is not confined to a mere holder for value, but it applies also to a holder who acts as a mere agent for another person. Thus, if a note has been transmitted by the holder to an agent, or banker, for the purpose of procuring payment thereof at its maturity, such agent or banker will be entitled to the same time to give notice of the dishonor to his principal or customer, as if he were himself the real holder for value; and the principal or customer will be entitled, after he receives such notice from his agent or banker, to the like time to communicate notice to the antecedent parties whom he means to charge, as if he were an indorser, and had received the notice from the real holder for value, and not from his own agent or banker.” The principles here so distinctly and positively [371] announced by this learned author are fully sustained by numerous authorities; nor are they of recent origin. See Bailey on Bills, chap. 7, sec. 2, p. 173, edit. of 1826. Chitty on Bills, ch. 10, p. 521 — 2. Smith’s Mercantile Law, [208]. Byles on Bills [162], and the cases cited by these authors. ‘ The act of 1827, has not, in our opinion, disturbed this well settled rule of the commercial law; and so, as to the general effect of that statute, it has been field by the former Supreme Court. Its object was to provide a new and convenient mode of proof. 3 Rob. 164. 7 La. il. So far as the decision in the case of Carmena v. Doherty, 7 Rob. 57, tends to ■overthrow the well established rule of the commercial law above discussed, and so abundantly recognized and sanctioned, we cannot give it our assent; It is of great importance" that there should be uniformity in the jurisprudence of our country, upon a subject so vitally connected with the every day interests of commerce as that of bills of exchange and promissory notes. "We conclude that it .was in time to mail notice to the drawers and indorsers, on the morning of the,day after the cashier and last indorser received them; and the question then presents itself, were these notices properly mailed, being, as we have seen, deposited in the post-o'fficé at St. Francisville, addressed to the Dohertys respectively at that place V "Whether the deposit of the notices in the post-office at St. Francisville thus addressed, it being proved that it was the office at which the parties usually received .their letters, was sufficient to bind them, is a point which it is not necessary for us to decide. In this case a very important fact is proved, which 'was not proved in the case of Carman v. Doherty. The Dohertys had informed Hall, the cashier, that they seldom went to other offices, and had ordered him to put their letters in that office’.' This justified the course pursued by Hall. “ In many cases,” says Story in the same treatise, already cited, § 344, “ where an indorser of the note points out a particular place to which the notice shall be sent to him, it will be sufficient, although it may not be his domi-cil or place of business; and the antecedent parties will also be bound by notice from him after the receipt of such notice, if given in due time, in the same manner and under the same circumstances, as if the notice had been regularly sent "to his domicil, of place of businéss ; at least if there be no fraud.” See also Shelton v. Braithwaite, 8 Mees. & Wellsby, 252. Mead v. Carnal, 6 Rob. 74. If the fact thus established had been proved in the case of Carmena v. Do-Jierty, it would have concluded the drawer and indorsers on that point of the cause. The present defendants cannot be held responsible for the failure of the plaintiff; on that occasion, to produce evidence which would so materially have changed the legal aspect of the cáse. The liability in the case now before us rests upon the question of the due performance of the agency, and that question must be.tested.by the evidence in this cause. It proves that the notices were given in due season, and in the manner directed by the parties to the bill, and consequently fixed their liability. It is therefore decreed that, the judgment of the Commercial Court be reversed; and it is,further decreed that, there be judgment for the defendant, and that.the plaintiff pay the costs in both’courts.'