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If the holder, on the day of maturity, finds the place of payment closed, it has been held that he is not bound to make any further demand to charge either drawer (j) or indorser.(k)
If at that time the acceptor be dead, a presentment at such place has also been held sufficient to charge a drawer.(?)
If the office at which payment was to have been made has ceased to exist previous to and at the maturity of a note, no demand at all has been held necessary,(m) even where the bank has been sold to another similar corporation, which was made the agent of the bank for settling its affairs of discount and deposit.(n)
Where a note is made payable at any or at either of the banks of a city or town, the holder has a right to elect at which bank
Wilde, J. said : “ No demand was necessary except at the bank ; and although there is no express proof that the notes were there, and some officer of the bank in attendance, at the times the notes fell due, yet this must be presumed, and it was for the defendants to show that the makers called at the place appointed for the purpose of making pay.
The testator by his indorsements guaranteed that the makers would respectively be at the bank and pay the notes according to their tenor.”
(j)) Hine v. Allely, 4 B. & Ad. 624, supra, p. 435, note y. (k) De Wolf v. Murray, 2 Sandf. 166, supra, p. 435, note w. (1) Philpott v. Bryant, 3 Car. & P. 244, 4 Bing. 717, 1 Moore & P. 754, supra, p. 427,
(m) Erwin v. Adams, 2 La. 318; Roberts v. Mason, 1 Ala. 373. See Central Bank v. Allen, 16 Maine, 41, infra, note n.
(n) Roberts o. Mason, 1 Ala. 373. Collier, C. J. said: “The contract of indorsement was, in law, an agreement on the part of the defendant to pay to the plaintiff, if the note should be duly presented for payment at the office of discount and deposit of the Bank of the United States at Mobile, and legal notice be given him of the default of the makers, in the event of their failure to provide for it. One of the conditions on which the liability of the defendant depended, it became impossible to perform, in con. sequence of the office of discount and deposit ceasing to exist previous to the maturity of the note. But it is not pretended that that occurrence was produced by the instramentality of the plaintiff, and it cannot be held to interpolate the contract of indorse: ment, so as to make the indorser's liability depend upon the performance of a condition by the indorsee which did not constitute a part of the original contract.” But in Cen. tral Bank v. Allen, 16 Maine, 41, a case where the bank at which the note was payable had ceased to exist, and its place of business was occupied by another bank, without any arrangement by the latter as to settling up the business of the former, the court seemed disposed to think that presentment should still be made. Weston, C. J. said : " And we are inclined to the opinion that the Branch Bank having ceased to operate, if their banking-house had not been occupied by a similar institution, presentment would have been excused. If this was the place of demand, and upon the facts we think it was, there is evidence of a sufficient presentinent at that place." A demand was, it will be seen, made at the latter bank, and the defendant contended that it ought to have been made on the maker at his place of business or of residence; but the court held the demand sufficient.
he will make the presentment, and a demand there will be sufficient.(o) This rule is applicable equally to places where there are many banks, as to those in which there are only a few.(p) An opinion seems to have been entertained, that where there are several banks in a large city, the holder is bound to give notice to the promisor where his note is; (7) but this must now be considered as overruled.(r) The reason given is, that the stipulation as to the place of payment was not made for the benefit of the maker, but of the holder; and to require notice to be given where the note is, would in many cases be more difficult to prove than an actual presentment to the maker on the day of payment.(s)
(0) Malden Bank v. Baldwin, 13 Gray, 154, a suit against the indorser of a note payable "at bank in Boston”; North Bank r. Abbot, 13 Pick. 465, an action against the indorser of a note payable "at either of the banks in Boston "; Jackson e. Packer, 13 Conn. 342, a suit against the acceptor of a bill payable "at either bank in Provi dence"; Langley o. Palmer, 30 Maine, 467, an action against the indorser of a noto payable " at any bank in Boston”; Page v. Webster, 15 id. 249, a suit against the indorser of a note payable at “either of the banks in Portland.”
(p) In Langley v. Palmer, 30 Maine, 467, a distinction was attempted to be drawn on this ground between that case and Page v. Webster, 15 id. 24, but the court overruled it, saying that “the principle is applicable equally to a note payable in Boston as in Portland.”
(9) Shaw, C. J., North Bank 0. Abbot, 13 Pick 465 : “ It would seem to follow, from other established rules, that, in such case, the holder should give notice to the promisor where his note is. But of this it is not necessary to give any opinion in the present case, because it was proved that, in fact, the promisor had notice that his note was in the North Bank.”
(1) Malden Bank o. Baldwin, 13 Gray, 154 ; Jackson v. Packer, 13 Conn. 312, where Waite. J. said that the notice“ was not required by the express terms of the bill, nor has any
local usage upon that subject been shown, and we know of no rule of law requiring it. If the parties wish for more certainty as to the place of payment, let them be more explicit in the bill.” Langley v. Palmer, 30 Maine, 467; Page n. Webster, 15 id. 249
(s) Bigelow, J., Malden Bank v. Baldwin, 13 Gray, 154. In Page v. Webster, Shepley, J. said : “ This form of a note has been introduced into this part of the country within a few years, and it may aid in determining the rights and duties of the parties to inquire at whose instance the note must have been so formed. It is not easy to perceive what benefit the maker would derive from a note in that form, unless it were made by a banker or banking-house, in which case there might be hope of advantage from an increased circulation. While the maker ordinarily could derive no advantage from such a form, he might justly apprehend some inconvenience in looking up the note to pay it. For, as it regards him, it is quite clear that the holder, by the law in this and most of the other States, is not obliged to have it at the place where payable A readiness to pay at the appointed place is matter in defence only. It is not, therefore, probable that it was so formed for his interest or accommodation. To the payee it might be of aivantage. He might be desirous of making use of the note in the mar
Where a note is payable at two places, the holder has a right to present it at either he may choose ;() and if a bill be payable in a city, and the acceptor has no residence or place of business there, it will be sufficient to charge the drawer if the bill is in the city at the day of maturity, ready to be delivered up to the acceptor if he should come to pay it.(u)
If a bill is drawn on a person residing in one place, payable in another, it is said that, in case of an acceptance and subsequent refusal by the acceptor to pay, the latter is the proper place in
ket, or at a banking-house, to obtain the money before it became due. It would be convenient to have it payable at a bank, to save the risk and trouble of a presentment to the maker. And if made payable at a particular bank, it would not be so readily received at other banks, because it would subject them to the risk and trouble of being watchful for the day of payment, and of sending it to the bank where payable for presentment. It would be natural for business men to endeavor to obviate this difficulty, so as to enable them the most readily to obtain cash for the note at any bank, not being limited to one, where funds were to be loaned. A note payable at any bank in a place would therefore be desirable to the payee, and it is but reasonable to conclude that such a form was introduced for his convenience and interest. And if so, does it not show that the intention of the parties was to relieve the payee or holder from risks and troubles to which he might be subjected if made payable at any one bank only? And if such were the intentions of the parties, they can only be carried into effect by requiring the maker to look for his note at all the places where he promises to pay it. For to require the holder to give the previous notice now insisted upon, would not only defeat the object of relieving from trouble and risk, but would subject to much greater than if made payable at one bank only. The maker's express promise to pay at any one of several places would indicate to a common mind the duty to act according to what is supposed to have been the intention of the parties, and to look at all the places for it, or have funds there when it became due. And as respects his own liabilities, it has already been seen that he must do it to relieve himself from the danger of costs, or at least must show in defence a readiness at some place named. The payee never could have designed, by receiving a note in that form, to have incurred the responsibilities now supposed to attach to it, yet if there is any rule of law so clearly settled and well established as to decide the legal construction which vught to be given to a contract in that form, the parties must be supposed to intend to conform to it."
(1) Beeching o. Gower, Holt, N. P. 313, where the note was payable at Maidstone, and at Ramsbottom & Co.'s, London.
(u) Boot v. Franklin, 3 Johns. 207, where the bill was payable in London, and the declaration stated that the bill not being paid, and the holders, not knowing where to present the same for payment in London, caused the same to be protested. kent, C. J. said : “ Nor were the holders bound to go elsewhere to seek the drawees, as the bill had directed the payment to be in London. They conformed their conduct to the tenor of the bill. They were in London on the day of payment, ready to receive payment, and they did all that they were enabled to do; they caused the bill to be there protested. The declaration in this case also states sufficient to entitle the plaintiffs to recover.” See also Mason r. Franklin, 3 Johns. 202. Bigelow, J., Malden Bank v. Baldwin, 13 Gra), 154.
which to make presentment.(v) But where a bill drawn in this way had been accepted for the honor of the payee, “if regularly protested and refused when due," a presentment in the place where the drawee resided, without any at the place where the bill was drawn payable, was held to be sufficient.(w)
The fact that a note is dated at a certain place, it need hardly be necessary to remark, does not make the note specially payable there. (2) It may have the effect of leading a holder, who has
(v) Story on Bills, $ 282, 353. See Chitty on Bills, !0th Lond. ed., 240. But in Mason v. Franklin, 3 Johns. 202, a bill drawn on a person at Liverpool, payable in London, was protested for non-acceptance in Liverpool, and afterwards for non-payment at the same place. Kent, C. J., after remarking that a good cause of action had arisen on the protest for non-acceptance, said : “ But we are of' opinion that, as no place of payment in London was designated, the demand for payment and protest for non-payment were well made upon the drawees personally at Liverpool. It would have been a very iüle act for the holder to have gone into London to make inquiry, when no place in London was pointed out in the bill, and when the drawees resided at Liverpool, and had refused to accept the bill. The law merchant has not pointed out any particular spot in London for such inquiries, and to have attempted it at large would have been the height of absurdity. The common law in general, and especially the commercial law, which forms a distinguished branch of it, is founded on the principles of utility and common sense ; and it would be truly surprising, and repugnant to the very spirit of the system, if an inquiry so senseless was requisite to consummate the right of the holder of the bill. It must be a sound rule, that where no particular place of payment is fixed, a demand upon the drawce personally is good. A general refusal to pay, was a refusal to pay according to the face of the bill. It was equivalent to a refusal to pay in London. We do not mean to say that the demand of payment at Liverpool was indispensable. The bill being payable at London, it would have been sufficient for the holder to have been there when the bill fell due, ready to receive payment. In the present case a protest at London, or a demand and protest at Liverpool, were sufficient, and the holder might take either course. The holders elected to demand payment of the drawers personally at Liverpool, and to cause the bill to be protested there, and the plaintiffs accordingly did all that in reason or law can be required to fix the antecedent parties to the bill."
(w) Mitchell v. Baring, 10 B. & C. 4. In Chitty on Bills, 10th Lond. ed., 241, it is said : “This case, though decided upon the peculiar form of the acceptance, and therefore not involving the general question as to the usage and custom of merchants, was nevertheless considered as sufficiently casting a doubt upon the validity of the previous practice to require the interference of the legislature ; and accordingly the Act of 2 & 3 Wm. IV. c. 98, was passed.” By the terms of“this statute, such a bill as that in Mitchell v. Baring may, without further presentment to the drawee, be protestel for non-payment at the place where it is payable.
() Lightner v. Will, 2 Watts & S. 140. In Taylor v. Snyder, 3 Denio, 145, Beardsley, J. said: “ The date of a note at a particular place does not make that the place of payment, or at which payment should be demanded for the purpose of charg. ing the indorser. This was expressly adjudged in the case of Anderson o. Drake, 14 Johns. 114. .... It has been supposed that the case of Stewart v. Eden, 2 Caines, 121, found nances a different doctrine. Livingston, J. there said : The notes being dated in
110 knowledge of the place of residence or business of the maker, to suppose that he might be found there.(y) Perhaps it may be said, generally, that the date of a certain place raises the presumption that the paper is payable, and therefore to be demanded, at that place.
EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT.
We have already stated that all the parties subsequent to the principal payor are only as his guarantors, and promise to pay only on condition that a proper demand of payment be made, and due notice be given to them in case the note or bill is dishonored. And we repeat this as one of the fundamental principles of the law of negotiable paper; and the infrequency and the character of the circumstances which will excuse the holder from making the demand, and still preserve to him all his rights as effectually as if it were made, will illustrate the stringency of the rule itself.
The only general and universal rule which can be laid down with respect to demand is, that in all bills of exchange, the
New York, the maker and indorser are presumed to have resided and contemplated payment there. This remark was in part strictly correct, for the date of the note Fas presumptive evidence of residence; and in a general sense it may also be true that the date raises a presumption that the parties contemplated payment at that place. Judge Livingston did not say that the note was, by law, payable at the place of its date; on the contrary, the form of expression conclusively repels that idea. He was not speak. ing of what the parties were bound to do by the terms of the note, of their legal obligations flowing from the engagement as maker and indorser, but simply of what they were presumed to have contemplated. . . . . . There is nothing, therefore, in this remark of Judge Livingston which can be made to countenance the idea that a nute, when no other place of payment is specified, is by law payable at the place of its date. Anderson o. Drake, 14 Johns. 114, supra; Bank of America o. Woodworth, 18 Johns. 322.” In Fisher v. Evans, 5 Binn. 541, Tilghman, C. J. said: “I can find no such prin. ciple as that for which the plaintiff in error contends, that the place where the bill is drawn must be taken to be the residence of the drawer." Galpin v. Hard, 3 McCord
See Burrows v. Hannegan, 1 McLean, 309. But seo the cases cited infru, p. 458, note a, where a different doctrine seems to be laid down.
(y) Whitman, C. J., Pierce v. Whitney, 22 Maine, 113, 29 id. 188. See the cases cited supra, p. 441, note r; Duncan v. M'Cullough, 4 S. & R. 480 ; Nailor v. Bowie, 3 Md. 251.