Glasgow v. Copeland ex rel. Milne

• Decision Date: 31 July 1843
• Citation: 8 Mo. 268
• Parties: GLASGOW & HARRISON v. COPELAND, TO USE OF MILNE.
• Court: Missouri Supreme Court

8 Mo. 268

GLASGOW & HARRISON

v.COPELAND, TO USE OF MILNE.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

GAMBLE and BATES, for Appellants. For the appellants it is insisted: 1. That though the holder of a bill of exchange, payable at any number of days after date, is under no obligation to present the bill for acceptance, but may wait and present it for payment when it becomes due, yet if he does present it for acceptance, and acceptance is refused, he is under the same obligation to give notice of the dishonor of the bill as if it had been payable after sight, and a failure to give such notice discharges the indorser. Chitty on Bills, 197; Bailey on Bills; 1 Peters' R. 25, see the point at page 35. 2. That though a promise to pay a bill after its dishonor will dispense with the proof of notice, yet it must be a real positive promise, or a clear acknowledgment of the debt, as a present subsisting obligation. Chitty on Bills, 233, 239. There was here no such promise or acknowledgment. 3. That the want of effects in the hands of drawee is no excuse for not giving notice to an indorser. Chitty, 228. Thus far the points are upon the failure to give notice of the non-acceptance of the bill. On the question of notice of non-payment the appellants make the following points: 1st. That notice, being necessary to charge an indorser, is to be proved by the plaintiff, and is to be proved to have been given within the time allowed by law. Chitty, 314. 2nd. That the notice is to be shown to have been sent by the mail next after the protest, or if the party undertakes to give the notice in any other than the usual and authorized mode, the burden is on him to show that it was received as soon as it would have been by mail. Chitty, 315. If the parties reside in the same town, the notice must be left at the place of business of the party notified 10 Johns. R. 490; 11 ibid. 231. 3rd. Smith & Carter, not being parties to the bill, had nothing to do with giving notice to those who were parties, so that any time could be allowed them for that purpose A person who is a party, and receives notice of the dishonor of a bill, is allowed to give notice the next day to previous parties, but there is no such time allowed to a stranger. Chitty, 226, 227. For anything that appears in the evidence, Glasgow & Harrison might have received the notice by the same mail which brought notices to Smith & Carter, and were not notified as early as they might have been, because the notices came to Smith & Carter. The court below ought, then, to have non-suited the plaintiff on the motion of the defendants, and after failing to do that, ought to have granted a new trial.

WILLIAMS, for Appellee. 1. Was it necessary to show that notice of protest for non-payment was mailed at Philadelphia, and when? I contend that it is not essential that notice be mailed. It may be sent by messenger, or in any way, provided it reach the party to be charged as speedily. Story on Bills, 452; Bailey on Bills, 276; Rahm v. Bank of Philadelphia, 1 Rawle, 335; Bancroft v. Hall, Holt, 476. If it had been mailed at Philadelphia, then it should and would necessarily have appeared at what time, an inquiry that does not here spring up. The question material in this case, is, when did notice reach the indorsers, and was that notice within reasonable time? The holder lived in Philadelphia; the indorser at St. Louis. The proof shows that it required ten days for mail-passage between the two cities; and Carter proves that he put notice to the indorsers into the post-office on the tenth or eleventh day, at farthest. Was this within reasonable time? It is not essential that notice be mailed, if mailed at all, on the same day of protest, although the post may have left on the same day. The next post is in time, if it shall be three days after protest. Bailey on Bills, 262, 265; Chitty and Story; Wright v. Shawcross, Barn and Ald. 501; Hawkes v. Salter, 4 Bing. 715. It follows, then, that notice on the eleventh, twelfth, or even thirteenth day after protest at Philadelphia, would have fixed the indorsers at St. Louis. Notice was put into the post-office at St. Louis, by Carter, on the tenth or eleventh day. 2nd. Should Carter have served personal notice on indorsers, instead of sending through the post-office? The rule of law is, that when a party to be charged resides in the same place with the holder, personal service of notice is necessary, but it is otherwise when he lives out of the same town or city. Story on Bills, 452, § 328; Bailey on Bills, 277. The most that can be said is, that reasonable diligence should be used in all cases to make the notice effectual, and it should appear that notice is received by the indorser, or, from the evidence, it should be fairly inferred by the jury that notice was received. This is sufficient to charge the indorser. Story on Bills, 333; United States v. Carneal, 2 Peters, 549; Bank of the United States v. Corcoran, 2 Peters, 121.

TOMPKINS, J.

Peter Copeland, suing for use of George Milne, brought this suit against James Glasgow and James Harrison, as the indorsers of a bill of exchange. The declaration states the bill to have been drawn on the first day of March, 1842, payable six months after date, by one James Smith, on Craig, Bellas & Co., of Philadelphia. There were four indorsers, of whom the defendants were the second. Judgment was given for the plaintiff, and to reverse it, Glasgow & Harrison prosecute this appeal. The testimony of the plaintiff shows that the bill was protested for non-payment on the third day of September next after the...