Bank of the United States v. Corcoran - 27 U.S. 121 (1829)
U.S. Supreme Court
Bank of the United States v. Corcoran, 27 U.S. 2 Pet. 121 121 (1829)
Bank of the United States v. Corcoran
27 U.S. (2 Pet.) 121
Notice to the endorser of a promissory note of nonpayment by the drawers.
C., the endorser of the note, at the time it fell due lived in a house in Georgetown, except the lower front room, which was occupied separately, as a store by one of his sons. There was a separate entrance to the dwelling part of the house through an alley or passage, apart from the store, which led to the upper rooms and back buildings and yard of the house. The son of C. who occupied the store, had a dwelling house separate from the store. C. was at that time postmaster of Georgetown, and kept the post office in another part of the town, where he usually transacted his private business as well as that of his office. C. had no concern in his son's store, but he was frequently about the door. Until he took charge of the post office, which was a year before the note fell due, written communications and notices for him were sometimes left at the store and were carried by another of his sons, unless when he forgot it, to him. After C. took possession of the post office, if notices had been left at the store for C., the bearer of them would have been directed to take them to the post office or they would have been delivered to him by his son at the post office if recollected or if they had been seen when left at the store. The notary stated that he believed the notice of nonpayment of the note was left at the store because he thought that he had frequently notices to give to the defendant, and was in the habit of leaving them at the store, and he never had been in the dwelling house or in the passage or alley. Held that this notice was not sufficient of nonpayment of the note "to" charge C. with liability to pay the note.
If notice of the nonpayment of a note, although left at an improper place, was nevertheless in point of fact received in due time by the endorser, and so proved or could from the evidence in the cause be properly presumed by the jury, it is sufficient in point of law to charge the endorser.
Presumptions from evidence of the existence of particular facts are in many cases, if not in all, mixed questions of law and fact. If the evidence be irrelevant to the fact insisted upon or be such as cannot fairly warrant a jury in presuming it, the court is so far from being bound to instruct them that it is at liberty to presume it that it would err in giving such an instruction.
In the circuit court, the plaintiffs, as endorsers of the Bank of Columbia, instituted this suit against the defendant as endorser of a promissory note dated "Georgetown, May 6, 1819," for $3,700, drawn by Daniel Reintzel and payable at
sixty days to the order of the defendant. The note was protested when at maturity by order of the Bank of Columbia the holders.
The plaintiffs gave in evidence the protest of the note, stating
"That payment thereof had been duly demanded of the maker on the third day of grace and refused and the usual notice of dishonor left next day at the store of James Corcoran (the son of the defendant) in Georgetown."
Two written papers were also put in evidence -- one a letter from Thomas Corcoran the defendant dated at Georgetown, May 8, 1822, and addressed to "O. Krutz, cashier, &c.," saying
"Mr. Rind having called on me on the subject of Mr. Reintzel's notes, I have no hesitation in saying that I will not take any advantage of the limitation act for my endorsement on the note of $3,700, dated 6 May 1819, and the note of $400, dated 27 May, 1819; the other note I have no knowledge of, and will call at bank to morrow for some explanation of it."
Also a warrant of attorney in blank, dated December 14, 1824, authorizing the docketing of suits at the ensuing term for the use of Bank of the United States, on these notes of Daniel Reintzel, viz., two of $400 each and one of $3,700, all due in 1819.
This paper was sent to the defendant for his signature, by Mr. Richard Smith, the cashier of the Bank of the United States, and the defendant addressed to him the following letter.
"Dear Sir -- If Mr. Reintzel should not be able to satisfy the bank before court, and it determines to bring suit, I will instruct and authorize Robert Dunlap, Esq., to docket the case for me. December 16, 1824. THOS. CORCORAN."
Benjamin F. Mackall, the notary who made the protest, was examined on the trial and produced his notarial book, in which he recorded all his protests and in which he had entered the protest of the note upon which this suit was brought. He stated
"That the demand and notice were made and entered in the book, and that although he had no recollection in relation to these notes, he believed that demand
and the notice thereof were made as stated in the book;"
that at the time of the demand and notice of the notes, the defendant lived in a house in Georgetown, except the lower front room thereof, which was occupied separately, as a store by one James Corcoran, the son of the defendant. There was a separate entrance to the dwelling part of the house, occupied by the defendant, through an alley or passage apart from the store, which led to the upper rooms, apart from the house, and he believes the notice of the note was left by him at the store, because he thinks he frequently had notices to give to the defendant and was in the habit of leaving them at the store, and he never was in the dwelling part of the house occupied by the defendant nor in the passage or alley.
It was also proved that James Corcoran, the son of the defendant, who occupied the store at the period referred to by the notary, had a family and a dwelling house apart from the store. The defendant, at the time of the protest of the note, was postmaster of Georgetown, and kept the post office in another part of the town, where he transacted his private business as well as the business of his office, and had no concern in the store. The defendant was often at the door and about the door of the store. Another son of the defendants, a single man, was concerned in the store; he lived with the defendant in the house until some time in February, 1819, when he left his father's family, but continued his connection with the store. It was also proved by James Corcoran that until 1818, when the defendant took charge of the post office, written communications and notices for the defendant were sometimes left at the store or at the dwelling part of the house; sometimes the persons bringing such notices were directed to take them into the house and sometimes he took them at the store, and then, unless he forgot to do so, as he sometimes did, he delivered them to the defendant. After his father took the post office, if he had known that such communications or notices had been left at the store, he would have directed the persons who called with them to take them to the post office, or, if going there, he would have taken them, and unless he forgot,
would have delivered them to the defendant; but he had no recollection of such fact's having occurred. When the defendant took charge of the post office, that became the place where notices and communications were usually left and where he transacted his business, both private and official, as post master and magistrate. The witness stated that he had no recollection of a notice of the protest of the note in suit having been left at the store.
The store never was, before or after the defendant took the post office, his place of business or the place appointed for the delivery of notices or other communications for the defendant.
The defendant's counsel prayed the court to instruct the jury that if it found from the evidence that the said notices were left at the store of the said James Corcoran, occupied by him separately from the dwelling part of the house occupied by the defendant as stated in the evidence, the notice is not sufficient to charge the defendant in this action, and the jury, on the said evidence, ought to find for the defendant on the first issue, which instruction the court gave. And the plaintiffs by their counsel prayed the court to instruct the jury that if it found from the evidence that notwithstanding the notices were left at the room occupied as a store by James Corcoran, yet that the said store was the place where notices for the defendant were generally left, and that the notices in the case of these notes were duly received by the defendant, then their being so left at said store does not defeat the plaintiffs' right to recover, provided the defendant received said notices in due time. And that their said papers read in evidence by the plaintiffs and signed and given to the plaintiffs by the defendant as above stated are competent evidence from which the jury may infer that the defendant did duly receive the said notices, which instructions the court refused to give.
The plaintiffs by their counsel excepted to the instruction given by the court upon the prayer of the defendant and to the refusal of the court to instruct the jury as required by them, and the case was brought up upon the bill of exceptions to this Court.