Renshaw v. Triplett

• Decision Date: 31 March 1856
• Citation: 23 Mo. 213
• Parties: RENSHAW, Appellant, v. TRIPLETT AND OTHERS, Respondents.
• Court: Missouri Supreme Court

23 Mo. 213

RENSHAW, Appellant,

v.TRIPLETT AND OTHERS, Respondents.

Supreme Court of Missouri.

March Term, 1856.

1. A notice of the protest of a bill of exchange for non-acceptance or nonpayment, placed in due time in the post-office, directed to a prior indorser, is sufficient to hold such indorser, although, from the failure of the mail, it should not reach its destination.

2. Where a bill of exchange was protested for non-acceptance, and notice was duly sent to the last indorser through the post-office, which notice never reached its destination through a failure of the mail; and the bill was afterwards presented for payment and was protested for non-payment, due notice of which was given to the last indorser: held, that, although the protest for non-acceptance was duly noted upon the face of the bill received by the last indorser at the same time with the notice of the protest for non-payment, yet a notice of the protest for non-payment only, given by such indorser to a prior indorser, without a notice of the protest for non-acceptance, would be sufficient to charge such prior indorser.

3. Where the last indorser of a dishonored bill receives due notice of its dishonor from the holder, and with this notice to himself, receives, inclosed in the same letter, notices directed to prior indorsers, the due service of these notices upon such prior indorsers will, it seems, be sufficient to charge them.

Appeal from St. Louis Court of Common Pleas.

This was an action against the defendants as first indorsers of a bill of exchange. The bill was dated May 12, 1853; was drawn by M. Langhorne on J. J. Childs, of New Orleans, in favor of the defendants, and payable thirty days after date. After several indorsements, the bill came to the possession of and was held by the Bank of the State of Missouri. The bank, by its cashier, indorsed the bill and transmitted it to the Bank of Louisiana, at New Orleans, for collection. The Bank of Louisiana caused the bill to be presented to Childs, the drawee, for acceptance. Acceptance was refused, and the bill was protested for non-acceptance, on the 31st day of May, 1853. This protest was duly noted on the face of the bill. On the day of the protest, the notary who made the protest inclosed notices to the drawer and each of the indorsers in one envelope, directed to the cashier of the Bank of the State of Missouri, St. Louis, Missouri, and deposited the same in the postoffice at New Orleans. This package was never received by the Bank of the State of Missouri, or its cashier. On the day of the maturity of the bill, it was presented to the said Childs for payment, and payment thereof was refused. The bill was protested for non-payment, and notices of protest were made by the notary for the drawer and each of the indorsers, and inclosed in the same manner as the notices previously sent had been. These were received by the Bank of Missouri. There was evidence on behalf of the plaintiff tending to show that these notices of protest for non-payment were served by the Bank of the State of Missouri, on the day of their receipt, on the drawer and the several indorsers of the bill. The signatures of the drawer and indorsers were proved, and the bill read in evidence. The title of plaintiff was admitted.

The plaintiff resting here, the court, upon the motion of defendants, gave the following instruction to the jury: “Upon the evidence given in this cause, the plaintiff is not entitled to recover.” To the giving of this instruction, plaintiff duly excepted. Thereupon, plaintiff submitted to a nonsuit, with leave to move to set the same aside, which motion having been made and overruled, the case is brought here by appeal.

Krum & Harding, for appellant.

I. The holder of the bill at the time of its protest for nonacceptance (the Bank of Louisiana) was, for all the purposes of this case, a distinct and independent holder, and its acts are to be regarded as they would be if it were a holder for value. (Story on Prom. Notes, § 326; see cases cited infra.)

II. The Bank of Louisiana was only bound to notify its immediate indorser, the Bank of the State of Missouri, and the latter was entitled to one whole day after its receipt of notice, in which to notify its immediate indorser, the prior indorsers having the same right in their turn. (Story's Prom. Notes, § 331, 335, a; 5 Metc. 212; 1 Ohio State R. 206; 4 Hill, 129.)

III. The Bank of Louisiana had performed its whole duty when it caused a notice to be deposited, in proper time, in the post-office at New Orleans, and addressed properly to reach its immediate indorser, and it was wholly immaterial, as far as the liability of the latter was concerned (treating the Bank of Louisiana as a holder for value), whether the notice ever reached its destination or not. (Story's Prom. Notes, § 328.)

IV. It is a general rule that if the holder does any act, or is guilty of any laches, whereby the drawer or acceptor is discharged, all of the parties to the bill, subsequent to the drawer or acceptor, are also discharged, because they have lost their recourse against those who were liable over to them.

V. The Bank of Missouri did not lose its remedy over, on the return of the bills, by reason of the failure of the mail. It had not exhibited any want of diligence, and was entitled to one day after its own receipt of notice, in which to notify its immediate indorser. (Story's Prom. Notes, § 335, a.)

VI. The first notice of protest for non-acceptance which the Bank of Missouri received, was when the bill came back under protest, with the notice of protest for non-payment. It is admitted by the pleadings that notice of the non-payment was given by the Bank of Missouri to the prior indorsers as soon as received. And appellant contends that it was not the duty of the bank to give, at the same time, a useless and idle notice of protest for non-acceptance. (See 9 Howard, 552.) Notice of dishonor was given as soon as received, and that was enough to enable all concerned to look after their interests in the premises.

VII. The inclosure of notices, in the manner indicated in the bill of exceptions, viz., there being separate notices for each firm or individual who was party to the bill, and all indorsed in one envelope, directed to the last indorser, whose residence was the same as that of the other indorsers, is a sufficient separate notice to each indorser. (See 22 Conn. 213; 7 Gill, 216; 18 Ohio, 54; 5 Shep. 360.) The question as to whether such an inclosure is due diligence, is for the court to decide as a matter of law. (7 Gill, 216; 2 How. 457; see also 1 Ohio, 296; 9 Howard, 552; 6 Watts & S. 399; 4 Ad. & El. 870.) If then there was nothing unusual or of practical inconvenience in making the inclosure of the notices in the manner aforesaid, the court ought to declare that due diligence had been used, in giving notice to each of the prior indorsers, and that they are charged with notice, notwithstanding the non-arrival of the package containing said notices.

B. A. Hill & Kasson, for respondents.

I. The omission to give notice of non-acceptance discharged the indorsers. (Story on Bills, § 284; Glasgow v. Copeland, 8 Mo. 268.) There was no notice of non-acceptance given to the defendants, the first indorsers of the bill. It is manifest that the notary of the Bank of Louisiana did not know the residence of the drawer and the several prior indorsers; and as agent for the Bank of Missouri, he performed his duty, according to the custom of the bank, by sending all the notices to the bank, to be served upon the respective parties, according to law. The sending of the notices to the Bank of Missouri was notice to the bank only, and not to the parties whose notices were inclosed therein, until they were served. (Story on Bills, § 294.) But it is further objected by the plaintiff, that the Bank of Missouri never having received any notice of non-acceptance from the notary, it is to be excused from giving notice of that of which it had no information. This pretext is entirely overthrown and answered by the fact that the protest for nonacceptance appears upon the face of the bill, as of the 31st May, 1853, and this bill came to the bank thus noted upon the face before any notices of non-payment were sent out, and then the duty to notify for non-acceptance clearly arose, and it was imperative for the bank to give the notice of non-acceptance, or the indorsers and drawer were discharged. If this last objection have any force, still it doth not appear...