Phoenix Ins. Co. v. Allen

• Decision Date: 17 July 1863
• Citation: 11 Mich. 501
• Court: Michigan Supreme Court
• Parties: The Phoenix Insurance Company v. John Allen

11 Mich. 501

The Phoenix Insurance Company v. John Allen

Supreme Court of Michigan

July 17, 1863

Heard May 29, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit. The case is sufficiently stated in the opinion.

Judgment affirmed, with costs.

Douglass & Andrews, for plaintiff in error:

1. The court erred in permitting counsel for the plaintiff below to read and comment upon, to the jury, cases from the books of reports touching the question of diligence.

If the question of whether due diligence had been used was one of law merely, for the court, then the counsel had no right to read such cases to the jury. If it was a question of fact for the jury, then what due diligence required should have been shown by legal evidence. Decisions of courts can not be tortured into evidence of facts for the consideration of a jury. It is a mere quibble to say that such cases are read as part of the argument, and as illustrations merely. The jury have no more right to listen to decisions by other courts or other juries upon the question of fact before them than to affidavits of bankers.

2. Stephens & Beatty kept the draft in their hands twenty-one days before transmitting it. The sole question to be decided was whether this period of delay was a reasonable one. Who should have decided the question, the jury or the court? No evidence was before the jury authorizing them to find that any delay beyond the time actually necessary for the transmission of the draft was reasonable, and if they found under the charge that the above period of twenty-one days was reasonable, it must have been, not upon the evidence, but from the light of their own inner consciousness. This can not be the way in which the law requires that such questions be settled. If a reasonable time in any case includes more time than is abundantly sufficient to place the draft in course of transmission, then such further time must be determined by some rule of law. It can not be that it is in all cases absolutely impossible to determine beforehand a point so essential to the rights of parties, and that those rights can be ascertained in each case only by asking ex post facto counsel of the whims of a petit jury. Uniformity of decision would be unattainable under such a system. The jury in the present case must be supposed to have found the delay reasonable. What assurance have we that the jury that shall pass upon the same question when we sue the drawer of this draft will come to the same conclusion? Questions of due diligence, probable cause, and the like, are always called and treated by the courts as questions of law, or of mixed fact and law, and in all such cases, the facts being ascertained, the only remaining question is for the court. It is absurd to say that a question is one of mixed fact and law, and then to leave the whole question for the jury, and reserve nothing for the court: 1 Greenl. Ev., § 49 n; 2 Ibid., §§ 186, 454; 3 Comst. 274; 1 Pet. 583; 9 Ibid. 46; 15 Ibid. 173; 2 Wend. 427-8; 1 Ibid. 352; 7 Cow. 709; 7 Ibid. 717; 1 Metc. (Ky.), 95; 1 Head 616, 624; 29 Mo. 203; 2 Hilt. 272; 21 Wend. 643; 2 Caines 371; 27 Barb. 227-8; 9 Ind. 577; 14 Me. 57; 22 Pick. 555; 5 Jones (L.), 246; 3 Ibid. 47; 1 Bosw. 326; 20 Mo. 64; 19 Ala. 612; 7 Gray 220; 28 E. L. & Eq., 93; 12 Met. 212; 16 Md. 170; 2 Hill 592; Busbee (L.), 393; Ibid., 394, 13 Ired. 253; 7 Ired. 283-5; 9 Gill 355; 4 Johns. 389; 1 B. & P., 389; 11 M. & W., 214, 217; 2 Q. B., 191.

The delay in the presentment of the draft was unreasonable, and the defendant was discharged from its indorsement, and from the original debt: 2 Hill 272; 7 Cow. 713; 4 M. & W., 721; 17 Wend. 368; 20 Ibid. 321; 7 Blackf. 367; 16 East, 248; 2 Hill 430-2; 20 Wend. 192; 23 N. Y., 28; 34 Barb. 249; 10 Wend. 304; 13 Ibid. 135; Ibid., 549.

The case is not affected by the draft in question not being negotiable. There is no reason for such a distinction, and no case sustains it. The draft, though not technically negotiable, is payable in currency recognized and treated as money by all persons in the community, and for all purposes affecting this question having the same qualities. Every reason for requiring diligence in the presentment of negotiable paper applies with equal if not greater force to this: 9 Wend. 122; 2 Wils. 353; 23 Wend. 348; 2 Am. Lead. Cas., 269.

The rule for which we contend arises from the nature of the indorser's undertaking, and does not, like the negotiability of paper, depend upon technical conformity to a definition. We conceive that an instrument drawn for an uncertain sum, or payable upon a contingency, would not, for this, be excluded from the operation of the rule, though it certainly would not be a bill of exchange. The reason of the rule would apply with full force to such a case, and to the one before us.

C. I. Walker and G. V. N. Lothrop, for defendant in error:

The important question in the case is, whether the question of due diligence in the presentation of the last order or draft, the facts being undisputed, is one of law for the court, or one of fact for the jury.

That the question of reasonable time and reasonable diligence, is, in general, a question of fact to be submitted to the jury under a proper charge, there can be no doubt. This arises from the nature of the questions, and is abundantly supported by authorities: 1 Greenl. Ev., § 49 and n; 4 B. & Ald., 202; 2 A. & E., 256; 10 Q. B., 69; 5 E. & B., 764; 6 Cranch 268; 5 Gray 432; Day v. Owen, 5 Mich. 520; Maher v. The People, 10 Mich. 212.

On the other hand, it will be freely admitted that the question of time within which the notice of the dishonor of negotiable paper shall be given, is, in many cases, and perhaps generally, a pure question of law, growing out of settled usage and a series of adjudications.

The reason and the limitations of this rule are pretty clearly stated in the case in which the rule itself had its origin.

In Tindal v. Brown, 1 T. R., 168, Lord Mansfield said: "What is reasonable notice is partly a question of fact and partly a question of law. It may depend in some measure on facts, such as the distance at which parties live from each other, the course of the post, etc. But wherever a rule can be laid down with respect to this reasonableness, that should be decided by the court and adhered to by every one for the sake of certainty."

There can be no doubt that, originally, the question of reasonable time and due diligence, whether applied to the presentation of negotiable paper, or to notice of its dishonor, was one purely of fact, to be decided by the jury. The earliest decision found upon the point is by Lord Chief Justice Holt, and that has been either expressly or practically followed, as to the question of reasonable time, by a very large number of English cases, both previous and subsequent to the case of Tindal v. Brown, which was decided in 1786: Lee v. Lewis, Skinner, 410; Same case, 1 Salk. 132; 1 Ld. Raym., 743; 1 Strange 508; 2 Strange 910; 1 W. Blk., 1; Doug., 514; 2 H. Blk., 561; 6 East, 13, note; 6 East, 15, note; 7 Taunt. 160; Ibid., 397; 1 M. & M., 133; 9 Bing. 416; 4 M. & W., 721; 28 E. L. & Eq., 86.

In accordance with these are many American decisions: 1 Dall. 252; 7 S. & R., 324; 18 Penn. 362; 2 McCord, 388; 2 Rich. 67; 3 Rich. 71; 9 Ala. 160; 13 Mass. 138; 4 Mason 345; 5 Mason 118.

It is true that there are some English cases, and many American cases, that lay down the doctrine in very general terms, that the question of reasonable time and due diligence, in relation to negotiable paper, where the facts are not disputed, is a question of law for the court. But a careful examination of these cases, we apprehend, will lead to the conclusion that this rule is applicable only to that class of cases where, in the language of Lord Mansfield, "a rule can be laid down." To this class belong:

1st. Those cases which require that a note or bill, payable at a certain time and place, shall, in general, be presented at such time and place, or the indorser is discharged.

2d. Those cases which require a notice of dishonor to be given on the day or the day after the fact of dishonor, or by the next mail.

3d. Those cases that require notice, when parties reside in the same town or city, to be sent otherwise than through the postoffice.

In these cases, and some others, a certain rule can be established, and such rule becomes a convenient and important guide to business men, and to which they adapt their business habits.

But from the very nature of things, it is impossible to fix any certain rule in relation to the presentation of bills of exchange, payable on demand, or at sight. Reasonable time depends upon such a variety of circumstances, so many of which are peculiar to each case; as upon the distance from each other of the parties, the course of trade, the course of the mails, the facilities of intercouse, the rates of exchange, the number of hands through which the paper passes, the accidental delays attending its transmission, that it is entirely impossible to lay down any rule in relation to the matter: 1 Pars. Notes, 339, 343.

It seems utterly absurd to say that it is a question of law, when no lawyer, however wise or learned, can, in advance, safely advise his client what the rule of law on the question is.

[Counsel further argued that, even if this was to be considered as a question of law, and if the order in question was negotiable, it was presented within a reasonable time, and that neither drawer nor indorser was discharged by the delay. ]

It was not objectionable for the counsel to read from the reports for the purposes stated in the record: 1 Ohio St., 286; 9 C. & P., 362.

Christiancy J. Manning and Campbell, JJ. concurred. Mar...