Durkin v. Siegel

• Decision Date: 07 March 1960
• Citation: 165 N.E.2d 81,340 Mass. 445
• Parties: Helen A. DURKIN v. David SIEGEL. Gerald DAVIS et al. v. David SIEGEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 81

165 N.E.2d 81

340 Mass. 445

Helen A. DURKIN v. David SIEGEL.

Gerald DAVIS et al. v. David SIEGEL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 9, 1959.

Decided March 7, 1960.

No argument nor brief for plaintiffs.

Lester S. Cramer, Boston (Bernard Kaplan, Boston, with him), for defendant.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

Promissory notes signed by one Browne were indorsed by the defendant. They were protested for nonpayment and notice of dishonor was sent on January 17, 1957, 'by the plaintiffs' attorney by certified mail, return receipt requested, properly stamped and addressed to the defendant at his home * * * [in] Brookline * * *. The letter, unopened, was returned by the post office * * * with the notation 'refused' * * * across the face of the envelope. The defendant testified that he was in Canada at the time.' The defendant in each of these two actions presented a motion for a directed verdict, which was denied. Certain of the defendant's requests for instructions ¹ were also denied. There were verdicts for the plaintiffs. The only question argued raised by the bill of exceptions is whether it was good notice of dishonor of promissory notes under G.L. c. 107, §§ 119 and 128 (both now repealed), to send a letter, otherwise in order, by certified mail, return receipt requested, rather than regular mail, where the letter was returned unopened and undelivered, marked 'refused,' with the blank form of post office receipt unsigned.

The Negotiable Instruments Law (G.L. c. 107) applies to this case, because these events occurred prior to October 1, 1958, the effective date of the Uniform Commercial Code, G.L. c. 106, as appearing in St. 1957, c. 765, § 1. See also § 21. The holder of a dishonored negotiable instrument must give prompt notice of dishonor to those secondarily liable. G.L. c. 107, § 112. Giving this notice is governed by G.L. c. 107, §§ 119, ² 125-128, 131. The provision here controlling is G.L. c. 107, § 128 (§ 105 of the original uniform act), which reads, 'Where notice of dishonor is duly addressed and deposited in the post office the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.' Registered and certified mail, return receipt requested, are usually regarded by careful people as preferred methods of ensuring delivery. No exception is made in § 128 with respect to those or other types of first class mail. The section has been carried over into the Uniform Commercial Code in somewhat different language but without attempt to change its meaning. See G.L. c. 106, § 3-508, which in par. (3) provides that '[n]otice may be given in any resonable manner' and that '[i]t may be oral or written,' and in par. (4) states, 'Written notice is given when sent although it is not received.' The comments of the draftsmen show that no changes in §§ 96 and 105 of the Negotiable Instruments Law (G.L. c. 107, §§ 119 and 128) were intended. Am.Law Inst. Uniform Commercial Code, 1958 Official Text with comments, pp. 330-332. See Budget Plan, Inc. v. Savoy, 336 Mass. 322, 330, note 1, 145 N.E.2d 710; Batchelder v. Granite Trust Co., Mass., 157 N.E.2d 540; Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 3 Cir., 190 F.2d 817, 822, note 9.

The most carefully supervised available methods of mail delivery, registered and certified first class mail, are certainly a 'reasonable manner' of giving notice of dishonor, for the propriety of the use of registered or certified mail for important notices has frequently been recognized in our statutes. Although some statutes permit notices by ordinary mail, in the absence of explicit language in a particular statute, a court would be slow to say that service by registered or certified ³ mail was not a compliance with such a statutory requirement for notice by mail. Service by registered mail in probate proceedings is familiar to us all. See Newhall, Settlement of Estates (4th ed.) §§ 16, 285 (but see § 36). See also Kelley v. Peters, 299 Mass. 166, 172, 12 N.E.2d 184.

In the light of the foregoing considerations, we hold that § 128 makes reasonable use of any form of first class mail (not excluding registered or certified mail) for a properly addressed notice of dishonor the equivalent of actual notice. Section 128 is not merely an application of the principle that the 'mailing, postage prepaid * * * of a properly addressed letter is prima facie evidence of its receipt by the addressee' (see Anderson v. Inhabitants of Town of Billerica, 309 Mass. 516, 518, 36 N.E.2d 393, 394; see also Hobart-Farrell Plumbing & Heating Co. v. Klayman, 302 Mass. 508, 509-510, 19 N.E.2d 805) but, instead, is a legislative declaration that the mailing is itself notice. Under § 128, once proper mailing of the notice has been shown, the fact of notice is established. See Holmes v. Cabot, 262 Mass. 152, 156-157, 159 N.E. 615; Beutel's Brannan, Negotiable Instruments Law (7th ed.) § 105, pp. 1073-1074; Britton, Bills and Notes, § 216; 5 Uniform Laws Annotated, Negotiable Instruments, part 2, § 105.

Persons who become secondarily liable upon negotiable instruments are not unfairly burdened if they are held bound by notices sent to them by any generally used form of first class mail at a usual address. They can protect themselves by stipulating (see § 131) that a particular address be used and by arranging at that address during any absence to have their mail received, opened, forwarded, and collected (in the event of the receipt of a notification from the postal authorities that it has not been possible to deliver to them a piece of registered or certified mail). That use of ordinary mail might have ensured delivery (see Fields v. Western Millers Mut. Fire Ins. Co., 182 Misc. 895, 897-898, 50 N.Y.S.2d 70) is completely irrelevant in view of § 128. Refusal of a registered or certified letter, of course, would not protect an indorser from the effect of notice. See People ex rel. Koelsch v. Rone, 3 Ill.2d 483, 485-486, 121 N.E.2d 738.

Certain decisions in other States, dealing with different types of notices, have held that use of registered mail may have obstructed delivery of a notice, thus making the notice insufficient. We put to one side cases arising under statutes or court rules requiring actual receipt of a notice or document. See Taxeira v. Arter, 292 Mass. 537, 539, 198 N.E. 900; Irish v. Monitor Ins. Co., 264 Mich. 586, 588-590, 250 N.W 318. See also Old Colony R. Co. v. Board of Assessors of Quincy, 305 Mass. 509, 513-514, 26 N.E.2d 313. Cases partly resting upon the strict construction of a provision for notice given by an insurer under an insurance policy also are not controlling. See American Automobile Ins. Co. v. Watts, 12 Ala.App. 518, 522, 67 So. 758; Fidelity & Casualty Co. v. Riley, 168 Md. 430, 436-437, 178 A. 250; Werner v. Commonwealth Cas. Co., 109 N.J.L. 119, 121-122, 160 A. 547. Cf. Fields v. Western Millers Mut. Fire Ins. Co., 182 Misc. 895, 897-898, 50 N.Y.S.2d 70. Public policy may support holding an insurance company, a compensated indemnitor, to a strict compliance with the provisions set out in the policy drawn by it. No comparable...