Wiseman v. Chiappella

Mr. Justice WAYNE delivered the opinion of the court. The plaintiff in this action alleges that he is the holder and owhier of a certain bill of exchange for two thousand and forty-five dollars forty-five cents, dated at Vicksburg, in the State of Mississippi, May 13th, 1855, and payable on the 23d November, 1855, which‘had been drawn by John A. Durden.and A. Durden on William Langton & Co., of New Orleans, and accepted by them, payable to the order of Langton, Sears, & *374 Co., and by that firm endorsed in blank. He further declares that the bill, when it.became due, was intrusted to the defendant, Achille Chiappella, a commissioned notary' public for the city of New Orleans, to demand payment of it from the acceptors, and to protest the same for non-payment, should the acceptors dishonor it; \nd that, from his carelessness in not making a legal demand of the acceptors, add from not having expressed it in the protest, that the endorsers of the bill had been discharged from their obligation to pay it, by a judgment of the Circuit Court of the United States for the southern district of Mississippi. He further alleges that the acceptors, payees, and endorsers, were insolvent, and that, from the. insufficiency of the demand for payment to bind the drawers of the bill,, the defendant had become indebted to him for its amount, with interest at the rate of five, per cent, from the day that it became due, the 23d November, 1855. The defendant certifies in his notarial protest that the bill had been "handed to him on the day it was dué; that he went several times to.- the'office of the acceptors of it, in G-ravier street,, in order to demand payment for the same, and he found the doors, clpsed, and “no person thereto answer my demand.” It also appeared-that one of the firm by which the bill had been accepted had a residence in New Orleans; that no.demand, for. payment had been made individually upon him ; and that -no further inquiry, had been- made, for the acceptors ■than the repeated calls which the notary states he had made at their office. "We think, under the circumstances, that such repeated calls at. the office.of the acceptors was a sufficient demand; that, further inquiry for them was not required by the custom of merchants; and that the protest, extended as it had been, is in conformity with what is now generally considered to be the established practice in such matters in England and the United States. We say, under the circumstances, for, as there is no fixed inode for making such a demand in all cases, each case as it oecürs must be . decided on its own facts. We have not been able to find, a case, either in our own or in the English reports, in which it has been expressly rilled. *375 that a merchant, acceptor of-á foreign bill of exchange, having a' notorious place of business, has been permitted to close it up during the business hours of the day, thus avoiding the obligation of his acceptance on the day of its maturity, and then that he was allowed to claim that the bill ought to have been presented to him for payment elsewhere than,at his place of business. Though such, conduct is not absconding, .in the legal sense of that word,.to avoid the payment of creditors, it must appear, when unexplained, to be an' artifice inconsistent with the obligations of an acceptor, from which the law will presume that he does not intend to pay the bill on the day when it has become due. The plaintiff in this case does not deny that the office of the acceptors was closed, as the notary states it to have been. The only fact- upon which he relies to charge the'defendant with neglect is, that one of the firm of Langton, Sears, & Co. resided in New Orleans, and that it .was the duty of the notary to have made inquiry for him at his residence. No presumption, under such circumstances, can be made, that the acceptors had removed, to another place of business, or that they were not intentionally absent from it on the day that they knew the bill was payable. This case, then, must be determined on the faet of the designed absence of the acceptors on that day; and that inference is strengthened by no one having been, left there to represent them. All merchants register their acceptances, in a bill book. It cannot be presumed that they will be unmindful of the days when they are 'matured. ' Should their counting-rooms be closed on such days, the la\V will presume that it,has,been done intentionally, to avoid payment, and, on that account, that further inquiries need not be made for them before a protest can be made for non-payment. Cases can be found, and many, of them, in which further inquiries than a call at the place of business of a merchant acceptor has been deemed proper, and.in which such inquiries not having been made, has been declared.to be a want of due diligence in making a demand for payment; bilt the rulings in such casés .will be found to have been made on account of *376 some peculiar facts'in. them which do not exist in this case. And in the same class of cases it has been ruled that the protest should contain a declaration by the notary that his call to present a bill for payment had been made in the business hours of the day; but in no case has the latter ever been presumed in favor of an acceptor, whose place of business has been so closed that a demand’for payment could not-be made there upon himself or upon some, one left there to attend to his business.- Lord Ellenborough said, in the case of Cross v. Smith, 1 M. and S., 545: “'The counting-house is a place where all appointments respecting business.and all notices.should be addressed ; and it is the duty of the merchant to take care that proper• persons shall be in attendance.” It was also ruled in ■that case, that a verbal message, imparting the dishonor of a bill, sent to the counting-house of the drawer during the hours of business, on two successive days, the messenger knocking there, and making a noise sufficient to be heard within, and no one eoming, was sufficient notice. . In-thiscase the facts were, that Pea & Co. had a counting-house at Hull, where they w^re merchants, and one lived within one mile and the other yvithin ten miles of Hull. The Monday "after Smith •& Co. received the bill, their.clerk went to give notice, and called at the .counting-house of- Pea & Co. about 4alf after ten o’clock. - He found the outer door open ; the inner .one locked. .He knocked so. that he must have been heard, •had any one' been there, waited two Or thrée minutes, and went away; -ánd on his return from the counting-room he saw Pea & Co.’s attorney,-and told, him! The next Monday -he jwent again at the. same-hour, but with no better success. • No .written notice was-left, nor-was any notice sent to the residence of’either of -the parties. The court took time to . consider, and then held,-without any reference to the clerk "having called at the counting-house two successive .days, that going to the counting-house at a time it'should have been open Was sufficient, and that it was' not necessary to leave a written notice, or to send to the residence of either .of-the parties.' In Bancroft and Hall, Holt, 476, the plaintiff received" notice *377 of. the hill’s dishonor at Manchester, 24th May. The same day he sent a letter by a private hand to his agent at Liverpool, to give defendant notice. The agent called at the defendant’s counting-house about six or seven P. M.; but the counting-house was shut up, and the defendant did not receive notice of the dishonor of the bill until the morning of the 27th — Monday. Two points were ruled: 1st. That sending by a private hand to an agent to give notice was sufficient; 2d. That it was' sufficient for the agent to take the ordinary mode to give notice — the ordinary time of shutting up was eight or nine. Where the endorser of a note shut up his house in town soon after the note wag made, and before it became due, and retired to his house iii the country, intending, however, only a temporary residence in the country, it was held that a notice left at his house, by having been put into the key-hole, was sufficient to charge him. Stewart v. Eden, 2 Can. R., 121. This court held, in Williams v. the Bank of the United States, 2 Peters, that sufficient diligence had been shown on the part of the holder of a note to charge the endorser, under the following circumstances: A notary public employed for the purpose called at the house- of the endorser of a note, to give him notice of its dishonor; and finding the house shut and locked, ascertained from the nearest resident that the endorser and his family had left town, on a visit. He made-no further-inquiry where the endorser had. gone, or how long he was expected to be absent, and made no attempt to ascertain whether he had left any person in town to attend to his business,' but he left a notice of the dishoüor of the note at. an -adjoining house, requesting the occhpant to give it to the endorser upon his return. In making a demand for an acceptance, the party ought, if possible, to see the drawee personally, or some agent appointed by him to accept; and diligent inquiry must be made for him, if he shall not be found at his house or place of business; but a demand for payment need not be peráonal, and it- will be sufficient if ft shall be made at one or tlie other place, in business hours. Chitty, 274, 367. *378 It was formerly the practice, if the house of the acceptor was shut up when the holder called there to present the hill for payment, and no person was there to represent him, and it appeared that he had removed, that the holder was bound to make efforts to find out to what place he had removed, and there make a payment. Such, however, is-no longer the practice either in England or in the United States, nor has it been in the United States for many years. It is now sufficient if the bill shall be taken to the residence of the acceptors, as that may be stated in the bill, for the purpose of demanding payment, and to show that the house was shut up, and that no-one was there. Hine v. Alleby, 4 B. and Adol., 624. It lias been decided by the Supreme Court in Tennessee, that the protest of a foreign bill of exchange, drawn upon a firm in -New Orleans, with no place of payment designated, where it appeared that the deputy of a regularly commissioned notary had called several times at the office of the acceptors to make demand of payment, but found no one there of whom the demand could be made, was sufficient to excuse a demand, and to fix the liability of the endorsers to whom notice had been given. Union Bank v. Jeptha Fowlkes et al., 555. The Supreme Court of Louisiana, in Watson v. Templeton, 11 Annual, 137, declares “that a demand made within the usual hours of business, at the commercial domicil of -a partnership, for the payment of a note or bill due by the firm, Í3 a sufficient presentment; that it was not necessary to make a further demand at the private residences of individual persons. The place of business is the domicil of the firm, and it is their duty to have suitable persons there to receive and answer all demands of business made at that' place.” Going with a promissory note, to demand payment, to the place of. business' of the notary, in business hours, and finding it shut, is using due dili gence. 1 Pick., Shed v. Brett, 413. In the case of the B. B. at Decatur v. Hodges, the Supreme Court of Alabama say: “The court below excluded-the protest for non-payment, because the presentment is stated thereon to have been made of the book-keeper of the drawees in their counting-room, they being absent. This was erroneous. *379 The bill was presented at the place of business of the firm, at. their counting-room. If they had intended to pay the bill, it was their duty to have been present on the day of payment, or to have left means for making such payment in charge of some one authorized to make it. The notary finding, them absent from their place of business, and their book-keeper there, might well make protest of the dishonor of the bill for nonpayment upon presentment to and refusal by him.” When, upon presentment for acceptance, the drawee does not happen to be found at his house or counting-room, but is temporarily absent, and no one is authorized to give an answer whether the bill will be accepted or not, in. such case it would seem the holder is not bound to consider it as a refusal to accept, but he may'wait a reasonable time for the return of the drawee. He may present the bill on the next day, but this delay is not allowable in a presentment for payment. This must be made on. the'day the bill falls due; and if there be no one ready at the place to pay the bill, it should b.e treated as dishonored, and protested. Story on Bills, sec, 250; Chitty on Bills, 9 Ed., 400. The Supreme Court of New York has ruled that where a notary’s entry ease states that presentment and* demand were made at the maturity of a bill, at the office of C. & S., the acceptors, this language imports that the officé was their place of business, and it will be presumed in favor of the notary, that the time -in the day was proper. Burbank, President of Eagle Bank of Rochester, v. Beach and others, 15 Barbour, 326. The preceding citation is in conformity with what the Supreme Court of New York had ruled thirteen years before, in • the case of the Cayuga Bank v. Hart, 2 Hill, 635. Its language is, that where a notarial eeruncate of a protest of a bill of exchange stated a presentment for payment at the office of an acceptor, on the proper day, and that the office was closed, but was silent as to the hour of the day of doing the act, that it was sufficient, and that regularity in that particular should be presumed. We infer, from all the cases in our books, notwithstanding many of them are contradictory to subsequent decisions, that the practice now, both in England and the United States, does *380 not require more to be done, in- the presentment of a bill of exchange to an acceptor for payment, than that the demand should be made of a merchant acceptor at his counting-room or -place of business; and -if that be closed, so in fact that a demand cannot be made, or that the acceptor is not to be found at his place of business, and has left no one there to pay it, that further inquiry for him is not necessary, and will be considered as due diligence ; and that presenting a bill under such circumstances at the place of business of the acceptor will be prima facie evidence that it had been done at a proper time of the day. If that shall be denied, it must Ipe shown by evidence. • But whatever may have been the differences between cases upon this subject, both in England and the United States, there has always been a requirement in both, countries, and everywhere acknowledged in the United State's, which -protects the defendant in this suit from any responsibility to the - plaintiff. The requirement is this: that the protest was made in this case in conformity .with the practice and law of Louisiana, where the bill was payable. Rothschild v. Caine, 1 Adol. and Ell., 43; 11 Smedes and Marshall, 182. We are aware of the contrariety of opinion which prevailed lor many years in regard to what should be considered due diligence in making a presentment of a bill of exchange for payment to an acceptor of it, under such circumstances as are certified to by the notary in this case. We have carefully examined most of them, from the case of Cotton v. Butler, in Strange, 1086, to the year 1856, and we have adopted those of later years as our best guide, and as having a better foundation in reason for the practice and the commercial law of the present day, and because we think it has mostly prevailed in the United States for thirty years. As the view which, we have taken of this case disposes of it in favor of the defendant, we shall not notice another point made in the argument in his behalf, which was, that the plaintiff’s right of action, if he- ever had one against the defendant, was excluded by the Louisiana law of prescription. We direct the affirmance of the judgment of the Circuit Court.