Whitridge v. Rider

Weisel, J., delivered the opinion of this Court. The appellants, plaintiffs below, declared- against the defendant, the appellee, as the endorser of a promissory note drawn by William T. Foster & Co., in favor of the defendant or order, and by him endorsed to the plaintiffs, charging that the same had been duly presented for payment and was dishonored, of which the defendant had ⁵⁵⁷ due notice. The declaration also contained the common money counts. The defendant pleaded that he was not indebted, and that he did not promise as alleged, and issues were joined.

At the trial, four exceptions to testimony offered by the plaintiffs and excluded by the Court, were taken, which will be noticed hereafter. When the testimony was closed, the plaintiffs and the defendant, by their respective counsel, submitted to the Court the prayers in the record, which present the question as to the sufficiency of the notice of dishonor of the note, the refusal of that of the former, and the granting of that of the latter by the Court, formed the plaintiffs’ fifth exception. The verdict and the judgment being for the defendant, the plaintiffs appealed We will first consider the question raised by the prayers: “was due notice of the dishonor of the note given to the defendant below?” The defendant resided in Baltimore County. Of this the notary who had charge of and protested the note for non-payment, was distinctly informed, but he failed to ascertain what wa§ his nearest, or what was his known post office.

In this dilemma he, on the same day, “dropped a notice (as he states) in the Baltimore city post office, under cover, directed to Edward Rider, Esquire, Baltimore, Maryland.” In his endeavor to ascertain the residence and post office of the defendant, the notary had recourse to the plaintiffs and to the officers of the Franklin Bank, Baltimore, which bank held the note for collection for the plaintiffs. From these he learned that the defendant resided in Baltimore County, but none of them could inform him of his, or his nearest post office in that County. He was also told at the bank that the defendant kept a bank account in that bank, and had business in the city which brought him frequently there. He made no inquiries of the makers of the note, whom and whose place of ⁵⁵⁸ business in Baltimore city, but one square from his own office, he knew; and his reason for not doing so, was, that as they had not paid the note, they would have no interest in telling him where to find the endorser; and that such was his practice in other cases, he having been a notary for four years, and that in that time he had protested four or five thousand notes and bills.

The only persons he sought information from, were the plaintiffs and the cashier, and (through him) the clerks of t'he Franklin Bank. It was admitted (by agreement) that upon the Northern Central Railway two daily trains passed regularly from a stopping place near the defendant’s residence to the city of Baltimore; and it was further proved that he had resided for forty years, about “seven and one-fourth miles from Baltimore city, and two from Towsontown, which latter place was his regular post office for six months before, and where he had a box; and that there were two post offices nearer to his residence than that of Towson-town, that of Brooklandville being the nearest.” That “under these circumstances the notary thought a notice directed to the defendant at Baltimore, and placed in the post office there, was the best course to pursue to reach him; that he supposed Baltimore city post office was the most - convenient place for many persons living in the .county, to get t.heir letters.” • .What, constitutes due diligence upon any state of facts, agreed or to be found by the jury, is a question of law for the Court, and it is very difficult to lay down any general rule applicable to all cases. Each case depends much on its own special circumstances. This however can he stated, generally, that if the holder does not know where the endorser, or other party to be notified, lives, but can inform himself by reasonable endeavors or diligent inquiry, he must do so.

An endorser is entitled to strict notice, by which is meant “that reasonable dili ⁵⁵⁹ gence shall be employed, and reasonable efforts made to give it. 1 Parsons on Bills and Notes, 490, and note a. Moore vs. Hardcastle, 11 Md. Rep., 486 . Rawdon vs. Redfield, 2 Sanf. Sup.

C. R., 118. The diligence employed should be such as men of business usually exercise when their interest depends upon obtaining correct information. The holder must act in good faith, and not give credit to doubtful intelligence when better could have been obtained. Bronson, J. Bank of Ulica vs. Bender, 21 Wend., 646 .

Lambert vs. Ghiselin, 9 How., 557, 558 . Sasscer vs. Whitely, 10 Md. Rep., 104 . Where or of whom should the holder seek this information? In the case of the Bank of Columbia vs. Fitzhugh, 1 H. & G., 248 , the notary made inquiry at the court house, post office, and exchange, and this was held sufficient.

In a case in 3 Hill, 520 , Spencer vs. Bank of Salina,, the notary inquired of several persons in the bar room of a hotel; at the post office, or of individuals he met in the street, he did not know which; nor did he know the persons whom he asked; and this was' held insufficient, for the reasons that it did not appear that the persons he inquired of were the business men of the place, or that they were credible, and were likely to know the fact. Where there is a Directory, that should be consulted; but not exclusively relied on, if other proper ..sources- of information are accessible. Persons connected with the transaction and likely to know the residence of the endorser and not interested to mislead, should be inquired of. All the parties to a note or bill should be applied to if practicable, except any or such as from interest would make a false statement.

Information acquired in this way, fairly, and acted upon, is regarded a sufficient performance of the duty of diligence; and the notice would suffice, though the wrong post office should be indicated and used. In Waters & Harvey vs. Brown, 15 Md. Rep., 285, ⁵⁶⁰ all the parties resided in Baltimore city, and the notary inquired of the plaintiff and the maker of the note, for the endorser’s residence; and this was held sufficient. In Rawdon vs. Redfield, 2 Sandf., 178, the notary examined the Directory and asked' the acceptor and the holder of the bill, the Court said there was no interest in either to mislead, and it was sufficient.^ Cases are numerous where applications were made to the maker of a note, or his agent, to the drawer of a bill, to the second endorser as against the first, and the inquiries yrere regarded as sufficient to authorize the holder in giving the notice he did, though the correct residence was not obtained'. In the case of Moore vs. Hardcastle, 11 Md. Rep., 486 , the notary knew that the endorser resided in Caroline Cdunty, but he made no inquiries whatever for Ms post office, but directed the notice to the county town; and the Court held this insufficient.

Prom these cases it would seem that the holder, or the notary having charge of the bill or note, is required to resort to all proper sources of information within his reach, in order to obtain-the knowledge of the post office of the person to be notified; and having done so, he will be excused if he acts upon incorrect information thus obtained. In the case under review the notary ascertained that the defendant, (endorser) resided in Baltimore County. The persons from whom he obtained this information were proper persons to be applied to, but they could not inform him of his post office, or of the one nearest to him. He failed however to apply to the makers of the note, although he proves that he knew them and that their place of business was but one square from his office.

The reason he assigns for not doing so, was their presumed interest not to give him correct information. We think that in this he failed in his duty. We cannot recognize in the makers of a note such au interest as would lead them to misstate; and as they, or some of them, were ⁵⁶¹ within reach of inquiry, the notary should have made application to them; and failing to obtain from them, after the other inquiries he had made, the information he sought, we think it was his duty to direct the notice to the county seat of the county in which he discovered he resided. For this there is authority, and we consider the rule a good one and applicable in such cases.

Weakley vs. Bell & Sterling, 9 Watts, 273 . Harris vs. Robinson, 4 How., 336 . The ruling of the Court below upon this branch of the inquiry, as presented by the prayers, and forming the plaintiffs’ fifth exception, we therefore pronounce correct. The next question arises on the exceptions to certain evidence offered by the plaintiffs as rebutting testimony, and relied upon as constituting an excuse, by way of waiver, for not giving notice to the defendant of the dishonor of the note.

The maker of the note sued upon was the commercial firm of William T. Foster & Co. The note was dated February 6th 1861, payable twelve months thereafter, and it matured and was protested for non-payment on the 8th of February 1862. The payee was Edward Rider, the defendant and endorser. The plaintiffs are Rider’s immediate endorsees. The firm of Wm.

T. Foster & Co., the makers of the note, was composed of Wm. T. Foster and John Beatty. These, with a certain Charles F. Taylor, composed a prior firm under the name of Taylor, Foster & Co., which dissolved partnership about the middle of January 1861, before the making of the note. The plaintiffs were creditors of Taylor, Foster & Co., on promissory notes to amount of $3,000, which were settled and released when that firm was dissolved.

All this was proved on the part of the plaintiffs by the said Charles F. Taylor, and a statement of these dates, facts and relations of the parties, is deemed necessary to ⁵⁶² a proper understanding of