Smyth v. Hawthorn

• Decision Date: 02 February 1832
• Citation: Smyth v. Hawthorn, 3 Rawle 355 (Pa. 1832)
• Parties: SMYTH v. HAWTHORN.
• Court: Pennsylvania Supreme Court

3 Rawle 355

SMYTH v. HAWTHORN.

Supreme Court of Pennsylvania.

February 2, 1832

IN ERROR.

The endorser of a promissory note cannot contest the right of a surviving partner to sue upon it as such, and call upon him to show the consideration he paid for it, or the manner in which it came into his possession, upon an allegation that it belonged to the deceased partner in his individual capacity where it does not appear that the administrator of the deceased partner denies that the interest is vested in the plaintiff as surviving partner; and even if the note did belong to the deceased partner in his individual right, the presumption is, in the absence of proof to the contrary, that the plaintiff came honestly by it for a full and valuable consideration.

It is sufficient proof of the delivery of a notice, that it was sent in a letter by the post, without proving that the letter was received; provided the delivery be on the day, on which the notice should be given.

A duplicate original, or copy of a notice is good evidence without notice to produce the original.

And where a written notice has been given, but no duplicate or copy kept, it is not requisite to give notice to produce the notice.

Where a promissory note became due in New York on Saturday when it was protested, and on the following Monday the notary enquired, where the defendant, who was the first endorser resided, of a subsequent endorser, who only knew that he resided out of the city of New York, and went to a former holder of the note to obtain information, and on the following day notice of the dishonor of the note was sent through the post office to the defendant in Philadelphia Held, that the notice was sufficient to render the defendant liable.

What is sufficient notice to an endorser of the dishonour of a promissory note, and what dispenses with notice, when it has not been given.

ON a writ of error to the District Court for the city and county of Philadelphia, it appeared that this action was brought by the defendant in error, John N. Hawthorn, as surviving partner of the late firm of M'Clintock Hawthorn & Co. to recover the amount due upon a promissory note, drawn by John G. Gannon in favour of, and endorsed by John Smyth, the defendant below and plaintiff in error, for three hundred and sixteen dollars, and twenty-five cents, dated New York, February 9th, 1826, and payable six months after date.

On the trial in the court below the plaintiff offered in evidence the depositions of William Seaman and John M'Quade, to prove that he had received the note in question from M'Clintock after the dissolution of the partnership; that a letter had been written by M'Quade to the defendant below, and put into the post office at New York on the 15th of August, 1826, directed to the defendant in Philadelphia, informing him that the note had not been paid, and that it had been returned by M'Quade to M'Clintock. This evidence was objected to by the counsel for the defendant, because no notice had been given to him to produce the letter, and because the contents and words of the letter were not set forth in the depositions.

The Judge before whom the cause was tried overruled the objection, and admitted the evidence, which was the first error assigned in this court.

The defendant below then produced and gave in evidence a letter from the plaintiff below to him, dated October 30th, 1826, in which the plaintiff declared, that he was the legal representative of M'Clintock then deceased, and another letter from the plaintiff to him dated 5th April, 1827, in which he declared that the firm of M'Clintock, Hawthorn & Co. had been dissolved on the 9th of November, 1825. The defendant further proved, that after the dissolution of the firm, M'Clintock continued to reside in New York, and transact business on his own separate account; that he received consignments from the defendant, and transacted business with him, and that he died in the month of September, 1826. After having established these facts the defendant gave in evidence two notices to the plaintiff to prove the consideration paid by him for the said note, and the manner in which it came into his possession.

The plaintiff then proved that M'Clintock was largely indebted to the firm of M'Clintock, Hawthorn and Company, and also produced a statement in the handwriting of the defendant, as follows, viz.

" Balance due by M'Clintock, Hawthorn & Co. as furnished $20,39

J. G. Gannon's note 316,25

336,64

Cash received at sundries 310,53

26,11

J. G. Gannon's note protested 316,25

$290,14

The counsel of the defendant contended in the court below, 1. That the note in question had been passed to M'Clintock individually, after the dissolution of the firm of M'Clintock, Hawthorn & Co. and could not be recovered by the plaintiff as surviving partner.

2. That under the circumstances of the case, it was necessary for the plaintiff to prove the consideration paid by him for the note, and the manner in which it came into his possession.

3. That sufficient legal notice had not been given to the defendant of the non-payment of the note by the maker.

His Honor instructed the jury substantially as follows:--That the note, on which this action was brought, was a note with a blank indorsement to which the law attributed a character of the most sacred kind: That it was of the utmost importance to the commercial world that a note of this kind should pass free and untrammelled from hand to hand, and that if it were not so the operations of business would be greatly impeded: That the law permits a note with a blank indorsement to pass by delivery even after it has been dishonoured, but in that case the holder takes it subject to all defences to which it would have been subject to in the hands of the payee: That " the possession of the note by the plaintiff in this instance was sufficient prima facie to entitle him to recover, and the defendant cannot call upon the plaintiff to prove the consideration paid, and the manner in which the note came into his possession, without a ground of suspicion having been first made to appear, which has not been done on the part of the defendant in this case; the plaintiff's possession of the note is therefore in this respect sufficient to entitle him to recover, if he can make out his case in other respects. But the holder of the note when due is bound to make a demand for payment on the maker, and upon his neglect or refusal to pay to give notice thereof to the indorser in a reasonable time, and though the indorser may not be able to show that he has suffered, because of the holder's delay in giving him notice, he may still stand upon his rights, and if he has not received such timely notice as the law says he is entitled to, he is discharged and your verdict must be for the defendant. Is that the case here? the maker had the whole of the 12th of August, the last day of grace, to take up the note; the 13th was Sunday; on Monday the 14th August, if the indorser had come forward, his contract would have been complied with; Monday was therefore the first day, on which the indorser was liable. It is very true, that strictly speaking, notice should generally be sent by the next mail. The law requires that the holder should use due and reasonable diligence. This is a question of fact for your decision, and must depend upon the special circumstances of the case. Mr. Seaman, the notary, on Monday morning, inquires of M'Quade as to the place of the defendant's residence. M'Quade only knew that he resided out of the city of New York, but did not know where; and goes to receive information from M'Clintock; the same day he goes to Gannon's house again to demand payment. This was an act of favour to the indorser of which he cannot reasonably complain. And on the next day, viz. Tuesday, the 15th, he puts into the post office a notice to the defendant residing here. Was this reasonable diligence? I leave it to you to judge, under all the circumstances of the case. The defendant denies that he ever received such notice. If the notice was put into the postoffice in proper time, it is all the law requires. There is no proof of its miscarriage; it rests on the defendant's assertion only. If it miscarry, it is the defendant's misfortune, but the plaintiff in this case having done all the law required of him by putting it into the post office, is not to be held responsible for it, if he put it in in proper time, which you will judge."

Errors were also assigned in this court in the charge thus given to the jury.

Chew, for the plaintiff in error, cited 1 Starkie, 357. 359. 371. 373. Dennis v. Barber, 6 Serg. & Rawle, 420. Patton's Adm'r. v. Ash, 7 Serg. & Rawle, 116. Campbell v. Wallace, 3 Yeates, 271. M'Kee v. Reiff, 4 Yeates, 340. Whart. Dig. 303. no. 375. Smedes v. Utica Bank, 20. John. Rep. 372. 3 Cow. 662. United States v. Barker's adm'x. 4 Wash. C. C. Rep. 469. 12 Wheat. 559.

W. M. Meredith, for the defendant in error, cited 2 Phill. Ev. 19, 20. Smith v. Bank of Washington, 5 Serg. & Rawle, 322. Stewart v. Allison, 6 Serg. & Rawle, 329. 6 Wheat. 104. 13 John. Rep. 470. 3 Pick. 180. Leazure v. Hillegas, 7 Serg. & Rawle, 320. Williams v. Smith, 2 Barn. & Ald. 501. 1 Chitty on Bills, 279.

OPINION

ROGERS J.

The possession of the note was prima facie, sufficient to entitle the plaintiff to recover; and we fully agree with the District Court, that no circumstances of suspicion were exhibited, which would make it necessary to prove the...