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OF EXCUSES FOR NON-NOTICE, GROUNDED ON THE NECESSARY KNOWL
EDGE BY THE PARTY TO BE NOTIFIED.
It has been held, that where a note is made by one firm and indorsed by another, and one of the partners of the indorsing firm is also a partner of the making firm, demand is necessary. (O) and by a reasonable implication notice might be here necessary.(u)
(l) Dwight v Scovil, 2 Conn. 654. Swift, C. J. said : “ The circumstance that one of the defendants was a member of both the companies who made and indorsed the noto can make no difference ; for each company is to be considered as distinct persons, with different funds and liabilities ; and there is the same reason for presentment and demand as if the companies were wholly different. If the companies should reside in different and distant places, the drawing of bills on each other might be convenient in the course of their business; but, on the principle contended for, the company drawing the bill might be subjected to pay it, because one of the partners belonged to both com. panies when the company on which it was drawn was solvent, and would have paid the bill if it had been presented. It is said that notice to one partner is notice to all; and that here one of the defendants knew that the note was not paid. It is true that one of the defendants must, in legal consideration, have known that the note was not paid ; but he equally well knew that the note, when it became due, had not been presented to the makers, and payinent demanded; he knew the fact that exonerated the defendants from all liability on their indorsement to pay the note, and it would be strange logic to say that this knowledge rendered the defendants liable.”
(u) But the point may still, however, be considered as an open one. In West Branch Bank v. Fulmer, 3 Penn. State, 399, the note was made by one firm and indorsed by another. All the indorsers were partners in the firm which made the note, which firm had two additional members. No notice to the indorsers was held necessary. Gibson, C. J. said: As to the liability of the indorsers, it is enough that it was decided in Porthouse v. Parker, 1 Camp. 82, in an action by the payee of a bill against the drawers, that, as the acceptor also happened to be a drawer, there was no necessity for notice to him, because the fact of dishonor was known to him; and that the knowledge of one was the knowledge of all. Now, putting the makers in this case in the place of their equivalent, the acceptor, in that, we find that the principle of the decision covers the whole of our case ; and it is fortified by Taylor v. Young, 8 Watts, 339, in which it was recognized, and by Gowan o. Jackson, 20 Johns. 176, in which it was reasserted. But it is argued, that, though Cochran & Perry were liable as makers, notice to them as indorsers was requisite to make them liable as such. .... It, however, the use of notice is to give a drawer or indorser a seasonable opportunity tc arrange his affairs with the acceptor or maker, it must be as available in its conseqnences when it is given to him in the one character as when it is given to him in the other. The principle of Porthouse v. Parker is, that knowledge is notice ; and the effect of it is, that knowledge of the one firm was the knowledge of the other. It wouid be absurd in an indorser to complain that he had not been served with formal notice of what was known to him, or that he was prejudiced for want of it. As, then, it was as much the business of Cochran & Perry as it was the business of the other members of the firm of Beers, Cochran, & Co. to provide for the payment of their joint
But where a partner draws upon a firm of which he is a member, he is not entitled to notice;(v) nor, it would seem, where drawers draw on their own firm, which has other members, although it would be otherwise if the bill were drawn after a dissolution.(w)
note at its maturity, and as they all knew that provision had not been made for it, proof of notice to Cochran & Perry would have been superfluous in an action against them as indorsers.” It may well be doubted whether any valid distinction can be made on this point between the case where the two firms contain one common member, and where they contain more than one.
(v) Rhett v. Poe, 2 How. 457, where the bill had been accepted. Fuller o. Hooper, 3 Gray, 334, where the bill was not accepted. So Gowan 0. Jackson, 20 Johns. 176. See Porthouse v. Parker, i Camp. 82. In this case the bill was drawn by an agent of George, James, and John Parker upon John Parker, and accepted by an agent of the jatter. The head note of the case states that the drawers were a firm. This case is cited by Byles on Bills, p. 223, as authority that notice to one of two or more parties jointly liable is sufficient. This is true, as has been said, so far as relates to partners, but incorrect with reference to other joint parties.
(w) In Tavlor v. Young, 3 Watts, 339, the bill was drawn by James Taylor & Co. on the Pittsburg Iron Co., in favor of S. K. Page & Co. The drawers, drawees, and S. K. Page were partners. The bill was dated Aug. 27th, and payable on demand. The drawers had dissolved their connection with the drawees on Aug. 12th, which was published in a newspaper of that date of which the holder was a subscriber. Notice to the drawer was held necessary. Gibson, C. J. said: “It is argued, however, that, as regards the holder, the drawers are to be considered as a partner firm of the honse on which the bill was drawn, and that presentment or notice was unnecessary, on the principle of Porthouse v. Parker, 1 Camp. 82, in which notice was ruled to be superfluous where the bill is drawn by several on one of themselves, since the acceptor, being likewise a drawer, is necessarily apprised of the material facts, and the knowledge of one partner is the knowledge of all; the converse of which was determined in Gowan o. Jackson, 20 Johns. 176, and would be our case if the drawer here had been a member of the general firm when the bill was drawn. But the fact is, it had retired, — notice of its retirement was published on the 12th of Aug., and the bill was drawn on the 27th. To this, it is said, the fact of withdrawal may not have been known to the holder when he took the bill. But of what importance is his ignorance? It is said he may have been induced to omit presentment and notice of non-payment by a belief that a continuation of the relation in which the parties once avowedly stood had rendered such a measure unnecessary. Would a reasonable belief, founded on a notorious course of dealing between the parties, that the drawer had not funds in the hands of the drawee, be equivalent to the actual fact, and operate as a dispensation from the duty of presentment and notice ? Of collateral facts like these the party must judge at his peril In analogy to the revocation of an agent's authority, notice of the dissolution of a partnership is necessary where the outgoing partner holds himself out to the world as the representative of the firm, and attempts to bind it, but not where he acts professedly and exclusively for himself. In respect to the first, the firm is bound for a supineness which, in trade, is equivalent to fraud in not apprising the public of the cessation of a relation which enabled each partner to contract for the whole. But in a transaction where the outgoing partner professed to treat, not for the firm, but for himself, it is not easy to perceive how the misconception of a fact that did not enter into the terms of the contract can dispense with any of its incidents, or give the party dealing with him an advantage against him.”
The question of notice of the dissolution might perhaps here be important.(2)
It has also been held, that notice must be given to the indorser when one member of a firm makes a note and another member is indorser, both parties signing in their own name, and not in the name of the firm, although the note was given for goods purchased for partnership purposes, and to be paid for by partnership funds.(y)
OF EXCUSES FOR NON-NOTICE, GROUNDED ON IMPOSSIBILITY OF NOTICE.
WE have seen that the death of the maker is no excuse for non-demand, (a) and, for a still stronger reason, it cannot be an excuse for non-notice.(b) So, as it is no excuse for non-demand that the indorser has been appointed administrator of the maker's estate,(c) it is also no excuse for non-notice.(d)
(x) The remarks of Gibson, C. J., cited supra, note w, were obiter, as notice may per. haps have been brought home sufficiently to the holder ; also, as the learned judge remarked, the bill having been received from the payee after maturity, the holder wag bound by the obligations of the payee at the time of indorsement, and the latter was well aware of the dissolution.
(y) Foland v. Boyd, 23 Penn. State, 476, where one of the partners refused to sign the note as maker, but consented to indorse it. Knox, J. dissented. Lowrie, J., deliv. ering the opinion of the court, said: “We discover no substitute for notice, and no excuse for its omission ; and such was the view taken elsewhere in a very similar case, Morris o. Husson, 4 Sandf 93. This is not like the cases where a note has copartners for the makers, and some of them for indorsers ; and where, of course, the knowl. edge of the dishonor by the makers is chargeable on them as indorsers. This suit is upon the note, a contract by which the maker and indorser stand severally and not jointly related to the plaintiff, the duties of each being different; and it cannot at all be said that one is liable for the other, except according to the contract, or that one is chargeable with the knowledge of the breach of contract of the other. Though they were partners in the original purchase, that does not confound this contract so as to allow a demand to be made of the indorser, and notice to the maker, or no notice or demand at all, which is really the effect of what is claimed here.”
(a) Supra, p. 445.
(6) Price o. Young, 1 Nott & McC. 438 ; Gower v. Moore, 25 Maine, 16, where the maker's estate was insolvent, and this was known to the indorser. So where the demand on the maker's administrator is unnecessary, because the latter is not liable. by statute, until after a certain period, notice should be given. See Hale v. Burr. 12 Mass. 86.
(c) Supra, p. 445, note l. (d) Juniata Bank v. Hale, 16 S. & R. 157. It is not clear from the case what kind But it cannot be deemed certain what will constitute notice in such a case.
It may be inferred, perhaps, from some authorities, that a demand on the indorser as administrator, and a notice to him as indorser, are necessary to charge him as indorser.(e) But it is not easy to see why a proper demand on him, with a due presentment of the note, does not necessarily contain all the essential elements of a regular notice. And it would appear to be superfluous, if not absurd, to require the holder to say, when the demand was ineffectual, “ Take notice that this will has been dishonored by you.” The only ground for the requirement can be, that the indorser must be told that he is looked to personally for the payment of the note of the deceased.(f)
Where the indorser is dead, notice must be sent to his executor or administrator; and if no person has been appointed, or it cannot be ascertained by the use of due diligence who or where he or they who have been appointed can be found, notice must be forwarded to the last place of residence of the deceased.(g) Hence the death of the indorser is no excuse for neglect to give notice.(h) Even although the administrator is not liable for any debts due from the deceased for a certain period,(i) still he must
of a demand was made. The statement of the case says that the note was protested, but no notice was given to the indorsers. The reasons for the decision appear mainly to be that it is well settled that knowledge is not notice. Groth o. Gyger, 31 Penn. State, 271. In this case the note was presented at the banking-house of the plaintiffs, but it does not appear whether the note was payable there or not.
(r) See Magruder . Union Bank, 3 Pet. 87, 7 id. 287. The head note of the valu. able edition of the reports of the Supreme Court by Mr. Justice Curtis is in nearly the same language as the text. Perhaps also the same doctrine may be inferred from Juniata Bank v. Hale, 16 S. & R. 157.
(1) Caunt o Thompson, 7 C. B 400, where the holder went to the acceptor's house on the day the bill matured, and there saw the drawer, to whom he showed the bill, and said, “I have brought a bill from Caunt's; you know what it is.” The drawer said, in reply, “I am executor of W. (the acceptor); you must persuade Caunt to let the bill stand over a few days, because W. (the acceptor) has only been dead a few days. I shall see the bill paid.” This was held sufficient notice to the drawer. Nothing appears to have been said about a waiver of notice.
(9) Supra, p. 501.
(i) Oriental Bank o. Blake, 22 Pick. 206, where Putnam, J. said : “But it does not follow, that, because to charge an indorser no demand is necessary to be made on the administrator of the maker of a note or the acceptor of a bill of exchange falling due within the year after the appointment, notice of the dishonor of the bill is not necessary to be given to the administrator of the indorser, in a reasonable time. He stands in the place of the indorser; and a want of notice of the dishonor of the bill may be
have notice, because he may at once, on receiving it, take measures for obtaining indemnity.
Where the maker or acceptor cannot by the use of due diligence be found, nor his last and usual place of business, no demand on him is necessary to charge an indorser.(1) But the dif
j ficulty or impossibility of making a demand of the acceptor or maker is no excuse whatever for non-demand of the indorser, or non-notice to him. It is possible that a brief delay in making demand and giving notice to an indorser might be excused by the fact that the holder was during that delay diligently employed in searching for the maker or acceptor. We should regard this, however, as extremely doubtful, and a prudent holder would, in such a case, give the notice at once, and at the regular time.
But the excuse would certainly be sufficient where the indorser could not be found ; and a delay of notice for several days has been excused on proof that the holder was unable to find the indorser.(k) If, however, after due diligence, the indorser cannot
prejudicial to all persons interested in the estate of his intestate He, for example, may have paid to the party liable to him upon the bill money which he might have retained, or have otherwise omitted to obtain security against the undertaking of his intestate. .....
Payment by the administrator of the acceptor, at the maturity of the bill, within the year, could not be enforced by legal process. The law will presume that a demand of payment under such circumstances would be fruitless. It would be useful to the administrator of the acceptor, but would not be of any benefit to the indorser. Whereas, a notice to the administrator of the indorser of the non-acceptance or nonpayment of the bill is of vital importance, inasmuch as it would enable him to take immediate measures against the parties liable to him, for the security of the estate of his intestatc. Now while, on the one hand, to charge an indorser, the law will not require the holder to make a vain demand on the acceptor, it will not, on the other hand, excuse him for neglecting to give essential notice. And we are all of opinion that the case at bar falls within the latter position. The reasonable notice which would have been required to be given to the indorser is quite as necessary to be given to his execu. tor or administrator."
(1) Supra, p. 418, note d.
(k) In Bateman v. Joseph, 2 Camp. 461, 12 East, 433, there was a delay of three days, which was excused for this reason. Lord Ellenborough, 2 Camp. 461, said:
When the holder of a bill of exchange does not know where the indorser is to be found, it would be very hard if he lost his remedy by not communicating immediate notice of the dishonor of the bill; and I think the law lays down no such rigid rule. The holder must not allow himself to remain in a state of passive and contented ignorance ; but if he uses reasonable diligence to discover the residence of the indorser, I conceive that notice given as soon as this is discovered is due notice of the dishonor of the bill, within the usage and custom of merchants." In Baldwin v. Richardson, 1 B. & C. 245, a delay of nine days was excused. So in Firth v. Thrush, 8 B. & C. 387, 2 Man. & R. 359, where there was a delay of more than two months. Browning v. Kin.