Walters v. Brown

• Decision Date: 18 April 1860
• Citation: 15 Md. 285
• Parties: WILLIAM T. WALTERS and CHARLES HARVEY v. SAMUEL BROWN.
• Court: Maryland Court of Appeals

15 Md. 285

WILLIAM T. WALTERS and CHARLES HARVEY v. SAMUEL BROWN.

Court of Appeals of Maryland.

April 18, 1860

As a general rule, where the endorser and the party required to give him notice reside in the same town or city the notice must be given to him personally, or at his domicil or place of business, and notice through the Post Office will not be sufficient, unless proved to have actually reached him in due time.

But, in a large commercial city, where the parties live within the limits of a penny-post, or letter-carrier, whose duty it is to carry letters from the Post Office daily, and the party entitled to notice is accustomed to receive his letters from such carrier notice put into the Post Office soon enough for the party to receive it in due time, is sufficient.

APPEAL from the Court of Common Pleas.

Assumpsit brought on the 4th of May 1858, by the appellants, as endorsees, against the appellee, as endorser, of a promisory note for $431.84, drawn by John F. McJilton and endorsed by Edward Spedden, Samuel Brown, and W. T. Walters & Co. The note is dated " Baltimore, Feb. 1857," payable at four months, to blank order. The plaintiffs, who constitute the firm of W. T. Walters & Co., placed the note in the Farmers and Planters Bank of Baltimore for collection, and, not being paid at maturity, it was duly protested.

The facts of the case are fully stated in the opinion of this court. In the course of the trial, the plaintiffs excepted to the ruling of the court below (MARSHALL, J.) in refusing their prayers, and granting the prayer of the defendant, and the verdict and judgment being in favor of the defendant, the plaintiffs appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Wm. A. Fisher, for the appellants:

As the defendant was supplied by the penny-post, a notice so sent was sufficient. It is laid down in Byles on Bills, 219, that a notice sent by the two-penny-post is sufficient, where the parties reside in the same place. And in Smith vs. Mullett, 2 Camp., 208, the same point is settled by Lord Ellenborough. In the case of Bell vs. The Hagerstown Bank, 7 Gill, 225, the court, in speaking of the proper notice of protest, say: " As in large commercial towns it is now the uniform practice to reach the party to be affected by the notice through the Post Office, where the parties both reside within the limits of the penny-postman." The court here seems to treat the sufficiency of such notice as an established principle of the law-merchant, and as conclusive, at any rate, in the absence of proof of custom requiring any other mode of delivery. The propriety of sending such a notice through the Post Office, where it appears that the party to be charged is served by the penny-post, is not only established by a current of authority abroad, and certainly in Maryland, but would seem to rest upon the soundest principles of justice, and to be perfectly consistent with even the severest construction of the law requiring notice to the endorser. The position assumed by the appellee does not conflict with the correctness of our views, for none of the authorities upon which he relies, go further than to maintain " that where the parties reside in the same place, notice must be left at the residence or place of business, or reach him personally." And, if that object be accomplished, the object of the law is met, even in the view taken by the other side. This object the penny-post accomplishes, delivering the notices twice a day at the residences and places of business with a degree of certainty quite equal to that of any other mode of delivery. The system of delivery by the penny-post is one of comparatively recent date, and no authorities can be properly appealed to as negativing our views, where it does not appear that the decisions were made in reference to the penny-post, or where there is no proof that the party is regularly supplied by the penny-post. The authorities cited by the appellee in 3 Ala., 3 McLean, 8 Foster, 3 Kernan and 6 How., will each be found obnoxious to one or both objections; and in no one of them was there any evidence that the party to be charged was supplied by the penny-post. In this case the evidence is explicit, by the notary, that he placed the notice, mentioned in the protest, in the Post Office, on the afternoon of the day when the note became due, and the carrier proved that, in that event, the notice must have been taken by him the next morning to the residence of the defendant.

Geo. H. Williams, for the appellees:

The plaintiffs (the holders) and the defendant being proved to be residents of Baltimore city, the only sufficient notice to bind the defendant would be by personal service of the notice of dishonor, or by leaving it at his place of residence or business, and, under such circumstances, depositing a notice in Post Office will not suffice. Where the endorser, and the party from whom he is to receive notice, reside in the same place, such service of notice is required, and no case can be found, even in England, where a penny-post has been held the proper means of communicating notice, save, only, in the city of London, where it was adopted by usage. In this country the rule is universal -- the notice must be personal, or left at the place of business or the residence of the party to be charged, where both reside in the same place. 6 How., 248, Bowling vs. Harrison. 3 McLean, 96, Hyslop vs. Jones. Ibid., 583, Hill vs. Norvell. 3 Ala., 34, Foster vs. McDonald. 8 Foster, 302, Manchester Bank vs. Fellows. 3 Kernan, 549, Van Vechten vs. Pruyn. 4 Sneed, 390, Davis vs. Bank of Tennessee. 3 Camp., 362, Beveridge vs. Burgess. The remark in Bell vs. Hagerstown Bank, 7 Gill, 225, that in large commercial cities notice may be given through the penny-post, was entirely outside of the case there before the court, and cannot be regarded as settling the law for this State on this subject.

Note. --The argument on other points is omitted.

OPINION

ECCLESTON J.,

This action of assumpsit was instituted in the Court of Common Pleas for Baltimore city, upon a promissory note for four hundred and thirty-one dollars and eighty-four cents, drawn by John F. McJilton, and indorsed by Edward Spedden, Samuel Brown and W. T. Walters & Co. The note is dated, " Balto., February 1857," and all the parties to the same reside in Baltimore.

The defendant pleaded " that he did not promise as alleged:" to which the plaintiffs joined issue.

The verdict and judgment being in favor of the defendant the plaintiffs appealed.

A denial of the plaintiffs' right to recover is based upon the absence of sufficient proof of due notice to the defendant, of the non-payment of the note; there being no dispute in regard to the making, or to the regular indorsement thereof.

It was duly protested; and the notary certified that on the same day he addressed written notices to the indorsers, informing them the note had not been paid, payment thereof having been demanded and refused, and that they would be held responsible for the payment thereof; that notices for the first and third indorsers he left at their places of business, and notice for Samuel Brown, he enclosed him, and put in the Baltimore Post Office.

The partnership of the plaintiffs was proved; they then examined, as a witness, Wilson M. Carey, a notary public, duly commissioned in and for the city of Baltimore. He testified that after the said note had been handed to him for protest as such notary, he went to inquire, he thought personally and not by one of his clerks, at the places of business of the plaintiffs, and also of the maker of said note, as to the residence or place of business of the defendant; that he did not find the plaintiffs or maker to respond to such inquiry and not knowing himself where the defendant lived or had his place of business, he deposited a notice of the dishonor of said note in the Baltimore Post Office, directed to Samuel Brown, Baltimore. The witness said he knew the place of business of Edward Spedden, which was in North street near Fayette street, and he looked in the directory and found the names of several persons therein named Samuel Brown; and being asked why he did not call upon the persons named Samuel Brown, as therein indicated, said he had no time to call upon them, he had twelve or fifteen notes to protest on that day.

The plaintiffs' witness, Gehrman, testified " that he had been for the last six years a letter carrier in the Baltimore Post Office, and that all letters which came into the penny-post of the Post Office for distribution by the penny-post of the office, and were directed to Samuel Brown, Baltimore, were delivered, by witness to the defendant as the only Samuel Brown who was served by the penny-post of said office; that said defendant was a well known citizen and lived on Eutaw street in said city; and that letters dropped in the office in the morning, were, in the course of business, delivered to him in the evening; and letters dropped in the evening were delivered the next morning."

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