impossible for it to pay; and for that reason a failure to present the notes for payment and give him notice of nonpayment could not by any possibility have injured him.

The judgment appealed from, therefore, is affirmed, with costs, with leave to the defendant to withdraw demurrer and answer, on payment of costs in this court and in the court below. All concur.*

4 See also In re Swift, 106 Fed. 65; Baumeister v. Kuntz, 53 Fla. 340; Torbert v. Montague, 87 Pac. (Colo.) 1145; Gove v. Vining, 7 Metc. (Mass.) 212, post, p. 580. Neg. Inst. Law, §§ 180-182. — C.

NEGOT. INSTRUMENTS -34

ARTICLE VIII.

DUTIES OF HOLDER: NOTICE OF DISHONOR.

1. Notice necessary to charge drawer or indorser.

$160

LONG v. STEVENSON.

[Reported herein at p. 442.] 1

§ 160

MARSHALL v. SONNEMAN.

216 PENNSYLVANIA STATE, 65. - 1906.

JUDGMENT for plaintiff, and defendant appeals.

MESTREZAT, J.-This is an action by an indorsee against an indorser to recover the balance due on a promissory note. One of the defenses interposed at the trial was an alleged failure to give the defendant notice of the dishonor of the note. The plaintiff proved the execution of the note by the maker, and introduced testimony to show that the defendant had indorsed it. A notary public was then called and he testified that he had protested the note at maturity for nonpayment, and that on the same day he had delivered notices of protest personally to both the plaintiff and the defendant, who were the indorsers.

*

The defendant denied that he had received notice of the dishonor of the note. He testified that the notary delivered to him an envelope addressed to L. A. Marshall, the plaintiff, which contained the follow

1 Notice of non-acceptance, whether presentment for acceptance be necessary or not (§ 240) must be given in case presentment for acceptance is in fact made, (§ 247). Blesard v. Hirst, 5 Burr. 2670; Thompson v. Cumming, 2 Leigh (Va.) 321; Watson v. Tarpley, 18 How. (U. S.) 517. The neglect is not cured by a subsequent presentment for payment followed by notice of dishonor. Smith v. Roach, 7 B. Mon. (Ky.) 17. But if the bill pass into the hands of a holder in due course after a dishonor by non-acceptance he may charge a drawer or indorser by a subsequent notice of dishonor for non-acceptance or non-payment. Dunn v. O'Keeffe, 5 M. & S. 282. See § 188. If after a note is overdue it is indorsed and transferred, the indorser is entitled to notice the same as the indorser of a note payable on demand. Beer v. Clifton, 98 Cal. 323. See Leavitt v. Putnam, 3 N. Y. 494, ante, p. 272.

The indorser of a non-negotiable note is not absolutely entitled to notice of dishonor, as his contract is that of guarantor. Cromwell v. Hewitt, 40 N. Y. 491; (cf. Newman v. Frost, 52 N. Y. 422); unless in jurisdictions where a guarantor is absolutely entitled to notice. Sutton v. Owen, 65 N. Car. 123. See ante, pp. 263-265.-H.

ing notice: "Notice of Protest. York, Pa., March 1, 1904. L. A. Marshall: Please take notice that the note of M. Fink for four thousand dollars in favor of A. Sonaman, dated York, Pa., Nov. 2, 1903, payable March 1, at L. A. Marshall & Co., Bankers, York, Penna., and by you endorsed (being due this day, payment having been demanded and refused), is protested for nonpayment, and that the holders look to you for the payment thereof. Respectfully yours, Henry K. Kraber, Notary Public." The defendant further testified that the notary gave him no other notice, paper or envelope. *

If the holder of negotiable paper desires to charge antecedent parties with its payment, it is incumbent on him to give them notice of its dishonor. He may notify either or all of the prior indorsers, but he can compel payment only from those who have received notice of the maker's default.

*

Notice of nonpayment, however, is not sufficient; nor is mere knowledge of protest all that is required to charge the indorser. Says the author [Byles on Bills] above quoted (page 276): "Notice does not mean mere knowledge, but an actual notification. For a man who can be clearly shown to have known beforehand that the bill would be dishonored is, nevertheless, entitled to notice." In Tindal v. Brown, 1 Term Rep. 167, Ashhurst, J., says: "Notice means something more than knowledge, because it is competent to the holder to give credit to the maker. It is not enough to say that the maker does not intend to pay, but that the holder does not intend to give credit to such maker. The party ought to know whether the holder intends to give credit to the maker or to resort to him.”

We are of opinion that the written notice which the defendant alleges was delivered to him was not sufficient to charge him with the dishonor of the note. It was in proper form, signed by a notary, and was delivered in due time. But on its face it clearly discloses the fact that it was not intended for the defendant. It was directed to L. A. Marshall, the plaintiff, and the envelope containing it bore the same address. Marshall, like the defendant, was also an indorser of the note, and, if the holder intended to impose liability on him, it was necessary that he should have notice of dishonor. It is therefore apparent that this notice was intended for Marshall, and was, of course, for the purpose of apprising him of the dishonor of the note, and was prepared by the notary with that intention. The notary does not testify that at the time he delivered the envelope containing the notice he told the defendant what it contained, or said anything to him concerning its contents. He did not apprise the defendant that the note had been dishonored or that the notice was intended for him. He gave the defendant no verbal notice whatever, and hence all the information the latter had of the dishonor of the note and the intention of the holder to guard his rights and to avoid responsibility by fixing liability on antecedent parties was what was contained in the envelope addressed

to Marshall. This, as we have observed, was a notice to Marshall that the note "by you indorsed" was protested for nonpayment, "and that the holders look to you for the payment thereof." Why should the defendant accept this as a notice of dishonor to him and take care of the note? There is no intimation in the paper that the holder intended to look to him for payment. On the contrary, the notice is that the holder will look to Marshall, his immediate prior indorser, for payment. This he had a legal right to do, and was not compelled to notify the defendant or any other indorser or to demand payment of him. If Marshall desired to hold the defendant responsible as a prior indorser it was incumbent upon him to give the latter notice of dishonor. The defendant was justified in treating the paper delivered to him by the notary as a notice to Marshall, as the address on the envelope and notice disclosed, and that the purpose was to notify Marshall of dishonor for the purpose of charging him with payınent of the note. If either the envelope or the notice had been addressed to the defendant, or if neither had been addressed to him, the plaintiff's contention that the notice was for the defendant would have some ground for its support. If, when he delivered the paper, the notary had notified the defendant verbally that the note had been dishonored or that the written notice was for him, there would be sufficient to charge the defendant with notice of dishonor. But none of these facts can be found in the case. Assuming that the defendant opened the envelope and read its contents, he simply obtained the knowledge that the note was dishonored and that the holder would look to Marshall, the last indorser, for payment. This, as we have seen, is not sufficient under the cases to fix the defendant, as an indorser, for the payment of the note.

Judgment reversed, with a venire facias de novo.2.

2 But see Wilson v. Peck, 66 Misc. (N. Y.) 179, where it was held that notice of dishonor erroneously addressed on its face to the maker but sent by mail to and received by the indorser is sufficient in the absence of proof that the indorser was misled thereby. WHITNEY, J., said:

"The first objection is that the notice was addressed on its face, by mis take, to the maker instead of the indorser. It described the note correctly. The envelope was correctly addressed and was personally received and opened by appellant. By section 166 of the Negotiable Instruments Law a misdescription of the instrument does not vitiate the notice, unless the party 'is in fact misled thereby.' This but states the law as previously settled. Mills v. Bank of the United States, 11 Wheat. 431; Gates v. Beecher, 60 N. Y. 518. By analogy, we think that the same rule should be applied where the instrument is misdirected instead of being misdescribed. Carter v. Bradley, 19 Maine 62. Whether Marshall v. Sonneman, 216 Penn. St. 65, where the misdirection was on the envelope as well as on the face of the notice, would be followed in this state, it is unnecessary to discuss. Appellant was a lawyer. He knew that he had indorsed a note for that maker for that amount, which was outstanding. He knew the notary and knew that the notary was the indorsee's attorney. He made no claim on the witness stand of having been misled."-C.

II. What constitutes sufficient notice.

§ 161

1. BY WHOM NOTICE MUST BE GIVEN.

CHANOINE v. FOWLER.

3 WENDELL (N. Y.) 173.- 1829.

ACTION against drawer of a bill. Judgment for plaintiffs.

By the Court, MARCY, J.- [After deciding that there was no sufficient proof that the protest in France, which did not conform to the rules of the law merchant, did conform to the rules of the French Commercial Code.]

To determine whether the defendant had legal notice of the nonacceptance of the bill, it will be necessary to see when it was given, and from whom it came. Messrs. Sewalls had transmitted the bill to France, and received information of its non-acceptance on the fourth or fifth of April. H. D. Sewall says he did not himself give notice thereof to the defendant, nor does he know that notice was given by his house; although it was their custom to give notice in such cases, and he has no doubt the defendant received it. He learned, from a conversation with the defendant between the time of receiving notice and on the 14th of April, that he had knowledge that the bill was dishonored. The judge, at the trial, ruled that if the defendant had notice in due time of the non-acceptance of the bill, it was no matter whence it came, it was available to the plaintiffs. The rule of law in relation to the notice was, I apprehend, laid down in a manner too broad and unqualified. The rule has heretofore fluctuated; but it never has been authoritatively stated, as I can find, to be as the judge laid it down on the trial, except in the case of Shaw v. Coates, at the sittings before Lord Kenyon, mentioned in Selwyn's N. P. 320, n. 25. Repeated decisions since, both in term and at nisi prius, have qualified and restricted the broad proposition of the judge in this case, and of Lord Kenyon in the case of Shaw v. Coates. In some instances, it has been decided that the holders or their agents are the only persons to give notice of the dishonor of bills; but it seems to be now settled that it is not absolutely necessary that the notice should come from the holder of a bill, but may be given by any person who is a party to it, and who would, on the same being returned to him, have a right of action on it. (Chitty on Bills, 229; 2 Campb. 373; 1 Stark. R. 29; Bayley on Bills, 161.) A notice from a mere stranger is not sufficient; and the charge of the judge was broad enough to sanction such a notice. For the insufficiency of the proof of the French Commercial Code and of the protest of the bill, and the misdirection of the judge as to the notice, a new trial ought to be granted. New trial granted."

3 Notice by the maker is not sufficient. Jagger v. National German-Am. Bank, 53 Minn. 386. Nor by the drawee. Stanton v. Blossom, 14 Mass. 116. Nor by the acceptor. Harrison v. Ruscoe, 15 M. & W. 231. The contrary