Bowling v. Harrison - 47 U.S. 248 (1848)
U.S. Supreme Court
Bowling v. Harrison, 47 U.S. 6 How. 248 248 (1848)
Bowling v. Harrison
47 U.S. (6 How.) 248
Where the holder of a protested note and the party entitled to notice reside in the same city or town, nonce should be given to the party entitled to it, either verbally or in writing, or a written notice must be left at his dwelling house or place of business.
The term "holder" includes the bank at which the note is payable, and the notary who may hold the note as the agent of the owner for the purpose of making demand and protest.
A memorandum upon the note, that the "third endorser, J. P. Harrison, lives at Vicksburg," was not sufficient to go to the jury as evidence of an agreement upon his part to receive notice through the post office.
It was a suit by the endorsee of a promissory note against the endorser. Bowling, the endorsee, lived in Maryland, and Harrison, the endorser, in Mississippi.
The note was as follows:
"$5,800 Vicksburg, November, 26, 1836"
"Two years after date I promise to pay to the order of W. M. Pinckard five thousand eight hundred dollars for value received, negotiable and payable at the office Planters' Bank, Vicksburg."
"[Signed] A. G. CREATH"
Endorsed: "Pay Pinckard and Payne or order. W. M. Pinckard." "Pay J. P. Harrison, or order. Pinckard and Payne." "Pay John D. Bowling, or order. J. P. Harrison."
At the foot of said note and on the face thereof was the following memorandum: "Third endorser, J. P. Harrison, lives at Vicksburg."
At May term, 1840, suit was commenced by Bowling against Harrison, and the cause came on for trial at May term, 1842. The jury, under the instructions of the court, found a verdict for the defendant, when the following bill of exceptions was taken by the counsel for the plaintiff.
"Bill of Exceptions"
"The plaintiff proved, by Alexander H. Arthur, a witness, who was sworn, that said memorandum was in the hand writing of the defendant, J. P. Harrison, and thereupon said memorandum was read to the jury. The plaintiff then proved by said Arthur that said note was deposited in the office of the Planters' Bank at Vicksburg, Mississippi, on 29 November, 1838, for collection, and that on that day, 29 November, 1838, he demanded payment thereof of the teller of said bank, who refused to pay the same; that on the same day he deposited in the post office at Vicksburg a written notice of the nonpayment of said note, directed to said defendant, Jilson P. Harrison, informing him of the nonpayment of said note. The said witness further stated that he acted as the agent of the Planters' Bank in making demand of payment, and giving notice of nonpayment of said note. Said witness further stated, that Jilson P. Harrison, the defendant, lived in the Town of Vicksburg, in which is and was the office of the Planters' Bank, when the note sued on was payable at the date of the maturity of said note. That for several years prior to the maturity of said note, it had been the usage of the Planters' Bank of Vicksburg to have notice served personally upon the endorsers resident in Vicksburg unless there was a memorandum on the note appointing some place at which notice would be received, and if there was a memorandum on the note designating a place where notice was to be served, then the notice was left at such place. That this usage applied to notes discounted or deposited in bank for collection. That the language of these agreements was generally as follows: 'Endorser will receive notice at Vicksburg post office,' &c., though sometimes they were in the language of the one attached to the note sued on; that seeing the defendant's name written at the foot of this note sued on, he supposed it to be an undertaking on his part to receive notice through the Vicksburg
post office according to the usage of the bank, and accordingly gave him notice of the nonpayment of the note by depositing the same in the Vicksburg post office addressed to him at Vicksburg, and that he gave no other notice of the nonpayment of the note to defendant. This being all the evidence in the cause, the court instructed the jury that to charge an endorser, if he lived in the town in which the note was made payable, the notice must be personal, unless he had agreed to receive it elsewhere or unless, by the custom and usage of the bank at which the note is made payable, notice of nonpayment was left at the post office. That the memorandum attached to the note sued on was not a sufficient agreement to receive notice at the post office, and dispense with personal service on the endorser. The court further instructed the jury, that the custom and usage of the bank, as proved in this case by the witness, Arthur, was not sufficient to dispense with personal notice. To which opinion of the court, the plaintiff, by his attorney, excepted before the jury retired from the box, and presented this his bill of exceptions, and prays that the same be signed, sealed, enrolled, and made a part of the record in this cause, which is done accordingly."
"J. McKINLEY [SEAL]"
Upon this exception the case came up to this Court.