Pier v. Heinrichshoffen

• Citation: 67 Mo. 163
• Parties: PIER et al., Appellants v. HEINRICHSHOFFEN.
• Decision Date: 31 October 1877
• Court: United States State Supreme Court of Missouri

67 Mo. 163

PIER et al., Appellants

v.HEINRICHSHOFFEN.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Circuit Court.

The case was tried before HON. JAMES K. KNIGHT, one of the judges.

Fisher & Rowell and Botsford & Williams for appellants.

Appellants were not required to show affirmatively that the postage was prepaid on the notice of protest. Renshaw v. Triplett, 23 Mo. 220; 1 Parsons on Notes and Bills, p. 561; Sanderson v. Judge, 2 H. Bl. 509; Parker v. Gordon, 7 East 385; Bossard v. Levering, 6 Wheat. 102. All that is required of the holder of a note in demanding payment thereof, is the use of reasonable diligence. It is reasonable diligence to send the note for collection in time to reach its destination by ordinary course of mail, and before its maturity; the holder is not obliged to guard against contingencies or look out for them, and is not chargeable with faults of the postoffice department. Windham Bank v. Norton, 22 Conn. 213; 2 Parsons on Notes and Bills, pp. 558, 559, 443; Story Prom. Notes, Secs. 336, 337, 338, 340, 368, 259, 209; Story on Bills, Secs. 289, 290, 308, 309, 234.

Slayback & Haeussler for respondents.

The note was not sent to its place of demand and payment until so late that the east miscarriage or delay in the mails carried the arrival of the note there beyond the necessary day. Due diligence requires action early enough to guard against such contingency. Gilchrist v. Donnell, 53 Mo. 591; Napper v. Blank, 54 Mo. 131; 1 Parsons on Notes and Bills, pp. 355-6, 443, 465; Schofield v. Bayard, 3 Wend. 488. The notary, in his certificate, does not state that the letters, containing the alleged notices, were mailed prepaid, so that not even a presumptive case was made out.

HOUGH, J.

This was an action brought by the plaintiffs, as holders of a negotiable promissory note, against the defendants, as indorsers thereof. The questions presented for determination are, whether the plaintiffs used due diligence in making demand of payment, and gave the requisite notice of non-payment to the defendants. The facts are as follows: The note in question matured on the 4th day of July, 1861, and was payable at the banking house of F. & G. Willins, in the city of St. Paul, Minnesota. Some time in April, 1861, the plaintiffs delivered the same to the bank of Cooperstown, at Cooperstown, New York, for collection. At that time a letter, in due course of mail, would reach St. Paul from Cooperstown, in about six days. The cashier of the bank of Cooperstown sent the note by mail to its regular correspondent, the Bank of St. Paul, in the city of St. Paul, for collection, in ample time, as the cashier stated, for it to reach its destination by ordinary course of mail, before the maturity of the note. When the letter reaced St. Paul, the Bank of St. Paul had made an assignment, and the envelope having printed on it the words “From the Bank of Cooperstown,” the postmaster at once returned it to the Bank of Cooperstown, with the indorsement “bank failed.” The letter was received by the Cooperstown Bank in the original envelope, unopened, on the 9th day of July, 1861, and on the same day the note was returned by mail to St. Paul in a letter directed to F. & G. Willins, who caused it to be presented and protested on the 15th day of July, 1861, the day on which it was received.

1. PROMISSORY NOTES: demand of payment; diligence: holder not prejudiced by mistake of postmaster.

The defendants contend that there was a want of diligence in not sending the note in time to guard against such contingencies as the evidence dicloses, and that the action of the postmaster in the premises, is no sufficient excuse for the failure to present for payment on the day of the maturity of the note. Professor Parsons, in his treatise on Notes and Bills, says: “Ordinarily any failure to present a note at the proper time, by reason of the negligence of an agent, would discharge an indorser, but where the holder makes use of the public mail for the purpose of transmitting the note to the proper place in season to have a legal demand made, and without any negligence on his part, we should say that he would not lose his remedy on an indorser, if through any accident or disorder, or the negligence or mistake of the postoffice clerks, the note does not reach the destined place in season to make demand on the very day of maturity.” Vol. 1, p. 461. In support of his text he cites the case of Windham Bank v. Norton, 22 Conn. 213, the leading features of which bear such a striking resemblance to the case at bar, that we think it proper to present them. The draft in that case was drawn upon and accepted by Mansfield, Hall & Stone, of Philadelphia, payable at the Farmers' and Mechanics' Bank, in said city, on the 2d day of June, 1849, and was indorsed by the defendants to the plaintiffs in the month of February, 1849. During the same month the bill was indorsed and delivered to the Ohio Life and Trust Co., a banking corporation, in the city of New York, for collection. At that time there were two mails per day from New York to Philadelphia; one leaving at 9 A. M. and one at 4 P. M., both of which were due at Philadelphia five hours after their departure. The Farmers' and Mechanics' Bank was the Philadelphia correspondent of the Ohio Life and Trust Co. On the morning of June 1st, the cashier of the Ohio Life and Trust Co. inclosed this draft with others, properly addressed to the Farmers' and Mechanics' Bank, and deposited said letter in the postoffice at the city of New York, in time for the afternoon mail, of that day for Philadelphia. This mail arrived at Philadelphia in due time, but the mail bags containing the letters for Philadelphia, were by the postoffice clerks in New York, marked to be forwarded to Washington, and were therefore carried to the latter place. The mistake was discovered at Washington, and the mail returned to Philadelphia, reaching there on the 3d of June, and on the next day, June 4th, payment was demanded and refused, protest made and notice given. In discussing the question of negligence, or reasonable diligence, the court said: “The only remaining inquiry is, whether the plaintiffs are chargeable with negligence for not forwarding the draft in question, by an earlier mail from New York to Philadelphia. It was sent by the usual, legal and proper mode. It was deposited in the postoffice in season to reach the place where...