Knickerbocker Life Ins Co v. Pendleton

• Decision Date: 16 November 1885
• Citation: 6 S.Ct. 74,29 L.Ed. 432,115 U.S. 339
• Parties: KNICKERBOCKER LIFE INS. CO. v. PENDLETON and others. 1 Filed
• Court: U.S. Supreme Court

6 S.Ct. 74

115 U.S. 339

29 L.Ed. 432

KNICKERBOCKER LIFE INS. CO. v. PENDLETON and others.¹

Filed November 16, 1885.

Leslie W. Russell and James A. Dennison, for plaintiff in error.

D. H. Poston, W. K. Poston, and L. W. Humes, for defendants in error.

BRADLEY, J.

The judgment rendered in this case on the fifth of January last (see opinion, 112 U. S. 696, S. C. 5 Sup. Ct. Rep. 314) was set aside on the last day of the last term, and the cause was restored to the docket for reargument at the present term. The original action was brought by several joint plaintiffs, minors, and children of Samuel H. Pendleton, deceased, against the Knickerbocker Life Insurance Company, on a policy of insurance on the life of said Samuel, taken out by him for the benefit of his said children; and judgment was rendered for the plaintiffs, some of whom had, in the mean time, come of age. The writ of error in this case was brought to reverse this judgment, and a judgment of reversal was pronounced on the fifth of January last. It was subsequently discovered by the court (a fact not noticed by any of the counsel) that the writ of error was sued out and the citation was directed and served against only one of the plaintiffs below, to-wit, P. H. Pendleton. The preliminary appeal-bond for costs was also made to P. H. Pendleton alone; but the bond for supersedeas, subsequently executed, was made to all the plaintiffs by name, and the subsequent proceedings were generally entitled in the name of P. H. Pendleton and others. This court, in view of the defect in the writ of error, entered a rule on the the plaintiff in error to show cause why the judgment previously rendered should not be vacated and the writ of error dismissed. On consideration of the special circumstances of the case, we allowed the writ to be amended, and a new citation to be issued to all the plaintiffs below, set aside our previous judgment, and directed the cause to be restored to the docket for reargument. The case has now been reargued, all the parties being represented. We do not find occasion, however, to render a different decision from our former one. The only question which we have deemed it necessary to consider more fully, being more fully discussed by counsel than before, is whether the evidence adduced to show a presentment of the draft in question for payment was sufficient to be submitted to the jury. The defendants in error now strenuously contend that it was not. It will be remembered that the draft was dated July 14, 1871, and was payable three months after date, without grace, and contained a condition that if not paid at maturity the policy should become void. We held that if the insurance company wished to avail itself of this condition, it must present the draft for payment at its maturity, but that protest for non-payment was not necessary.

On the trial, which took place nearly 10 years after the transactions referred to, it was shown that about three weeks before the maturity of the draft it was sent from Memphis by the Union & Planters' Bank to the Louisiana National Bank at New Orleans, to be presented for acceptance, with directions not to have it protested; that the latter bank did so present it to the drawees, Moses Greenwood & Son, and that it was not accepted by them; that it was then returned to the Memphis bank, which, about the fifth of October, again sent it to the New Orleans bank for demand of payment. Luria, the cashier of the latter bank, was examined on interrogatories. After stating the facts relating to the presentment of the draft for acceptance, and the usage and custom of his bank with regard to the presentment of bills and notes for acceptance and payment, was asked this question: 'From your examination of the indorsements upon the draft,' (which was exhibited to him,) 'in connection with your knowledge of the course of business of the Louisiana National Bank, as stated by you, would you say whether or no said paper has been presented for acceptance and payment as other commercial paper sent to you for collection through your corresponding banks?' To which he answered: 'Yes; it was presented for acceptance and for payment, as in all similar cases [of] paper sent to us for collection, which is the custom on the part of the Louisiana National Bank in giving prompt attention to all business intrusted to its care.' It was not pretended that the draft was paid. The witness being asked on cross-examination if he knew of his own knowledge that said draft was presented for either acceptance or payment, he answered: 'Yes, for both; from the fact that the rules of the bank make it necessary, in the ordinary course of business, to present both for acceptance and payment.' Being asked if he presented the bill in person, or was present, he said: 'No; for the reason that, as cashier of the bank, it is not my duty to present drafts either for acceptance or payment.' He also stated that it was the custom of the bank to give notice to drawees of time drafts of the maturity of the same; and that the drawees in this case, Moses Greenwood & Son, had a regular business office in the city of New Orleans. Luria further testified that the bill was entered on the books of the bank as maturing on the fourteenth to the seventeenth of October, 1871, the three days of grace being added according to the laws of Louisiana. It further appeared that on both occasions, when the bill was sent to the Louisiana bank for presentment, and when it was sent for payment, it was with instructions not to have it protested; which accounts for the fact of there having been no regular protest of the draft. Two letters of Moses Greenwood & Son to S. H. Pendleton were produced in evidence; one dated September 29, 1871, and the other November 4, 1871. In the first they say: 'Your draft for life policy (some $330) due fourteenth of next month, was presented this day for acceptance. Not finding any advice of it, we requested them to hold till we got an answer from you. Please write at once if you want it paid.' By the letter of November 4th, they say: 'Yours of twenty-seventh ult. received. Will pay that insurance note when presented, as you request. This is the first advice we have had about it.'

This does not show that the draft had not been already presented for payment. The letters, taken together, show that Moses Greenwood & Son were not prepared to accept or pay the draft until they received Pendleton's letter of October 27th, long after the draft became due. It seems very probable from the evidence that, as well when the draft was presented for payment (if it was so presented) as when it was presented for acceptance, the drawees requested the bank to hold it until they could get instructions from the drawer. At all events, the Louisiana bank kept the draft until November 17, 1871, and then returned it to the Union & Planters' Bank of Memphis. Luria, being asked, 'Why did your bank hold this paper, which matured on the seventeenth of October, 1871, until the seventeenth of November, 1871, before returning it to the Union & Planters' Bank, Memphis?' answered: 'I cannot say positively for what reason, not having the correspondence before me; my impression, however, is that protest being waived, and the demand for its payment having been made, it is quite likely that M. Greenwood & Co. may have requested it held until they could receive advice from the parties; however, it was retained, with the expectation of collecting, until the seventeenth of November, 1871, when it was returned by instructions of the Union & Planters' Bank of Memphis, in their letter dated November 14, 1871.'

Santana, the runner of the Louisiana bank, whose duty it was to present notes and drafts, was also examined on interrogatories. Being asked to state all that he knew about the draft in question, (which was exhibited to him,) he answered that he had it for the purpose of presenting it for acceptance, which was refused, as per...