Cox v. National Bank
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100 U.S. 704 (1879)
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U.S. Supreme Court
Cox v. National Bank, 100 U.S. 704 (1879)
Cox v. National Bank
100 U.S. 704
A bill of exchange drawn by A. to the order of B. on "Messrs. C. & D., New York, N.Y.," was accepted by them without qualification or condition. All the parties then and at its maturity resided in Kentucky. The notary public, after making on the day it matured diligent but unsuccessful inquiry in New York City for C. & D., and for their place of residence or business, presented it and demanded payment, during business hours, at the places frequented by them when in that city. Payment not having been made, he protested the bill, and on the next day, learning from those whom he believed to be informed on the subject the residence of A. and B., transmitted to them there by mail, post paid, notices of such protest. Held
1. That the bill was in law payable at that city.
2. That the presentment and demand were sufficient.
3. That the requisite steps to bind A. and B. were taken.
The first of these cases is an action by the National Bank of the State of New York against Merritt Cox, the drawer, J. C. Whitlock, the payee, and W. F. Cox and William Cowan,
the two last doing business as partners under the firm name of Cox & Cowan, the acceptors of the following bill:
"$5,000 HOPKINSVILLE, KY., Aug. 3, 1875"
"Eighty days after date, pay to the order of J. C. Whitlock five thousand dollars, value received, and charge to account, renewing a bill for same amount and names, due Aug. 3, 1875."
"To Messrs. COX & COWAN, New York, N.Y."
Written across the face of the bill were the words, "Accepted: Cox & Cowan."
Whitlock endorsed said bill to E. M. Wright & Co., of New York, who in turn endorsed it to the bank.
The petition of the plaintiff alleges the presentation of the bill in the city of New York for payment, the refusal thereof, and protest and notice to the drawer and endorser.
Cox & Cowan made no defense.
Merritt Cox and Whitlock, however, answered, denying notice of protest, the due and proper presentation of the bill, or the demand of payment.
At the trial, the plaintiff, having read the bill and the protest thereof to the jury, offered evidence tending to show that the notary entrusted with said bill made reasonable and diligent inquiry for the acceptors and their place of business in New York City at the place or places frequented by them when there, and could not, after such inquiry, find them or any place of business of them or either of them; that he then demanded payment on the day of maturity in business hours at the place so frequented by them when in said city, and that payment of said bill was then and there refused; that they caused inquiry to be made by the said notary in New York on the twenty-fifth or twenty-sixth day of October, 1875, of E. M. Wright, a resident of New York City, and one of the firm of E. M. Wright & Co., who endorsed said bill to the bank, as to the post office address respectively of said Merritt Cox and J. C. Whitlock; that said notary was then informed by said Wright that the post office address of each of said defendants was Hopkinsville, Ky.; that said notary, on the twenty-sixth day of October, 1875, mailed notices of said protest to each of said
defendants at Hopkinsville, Ky. There was no evidence to show that the bank or anyone for it, at any time made any other inquiries for the post office address of either or both of said defendants.
Cox and Whitlock introduced evidence tending to show that the bill was drawn by Merritt Cox, accepted by Cox & Cowan, and endorsed by Whitlock, all in Hopkinsville, Ky.; and it was there delivered to G. V. Thompson, to whom the bill, of which the one in suit was a renewal, had been sent by E. M. Wright & Co., who had endorsed the same to the bank as collateral security, and had received it after maturity from the bank (the holder) for the purpose of having it renewed; that Thompson sent the bill in suit to said Wright & Co., who immediately delivered it to the bank and informed it that the bill had been executed and accepted in Kentucky; that at the time of the execution and acceptance of said bill and at the time of its maturity, the acceptors thereof, W. F. Cox and William Cowan, composing the firm of Cox & Cowan, each resided in Hopkinsville, Christian County, Ky., and had their place of business there, and not elsewhere; that the bank, when it took said bill and when it was executed and when it matured, was informed and had knowledge that the residence and place of business of Cox & Cowan were at Hopkinsville, Ky., at all the times aforesaid; that there was no presentment for payment of said bill or demand of payment of the same to or upon said acceptors, or either of them, in person or at their residence or place of business in Kentucky on the day of its maturity or at any time; that there was no agreement to pay said bill in New York except as shown upon its face; that the post office address of both Merritt Cox and J. C. Whitlock was then, and at all previous times for fifteen years had been, Newstead, Ky., and never at Hopkinsville, and that at all times when the bill in suit or the previous one existed, G. V. Thompson, to whom the bill had been sent, resided in Hopkinsville, Ky., and well knew the post office address of both Cox & Whitlock to be Newstead, Ky., and not Hopkinsville, that mail facilities between Hopkinsville and New York were ample and daily, and that a letter reached one place from the other in three days; that there was telegraphic communication
between the two places; that E. M. Wright & Co. were factors and commission merchants in New York, and in that capacity did business for Cox & Cowan, and in the course thereof the bill was received; that each of the firm of Cox & Cowan during the course of said business, and up to June, 1875, on different occasions visited New York on business, and while there wrote and received letters at the office of said Wright & Co., and looked after business entrusted with said factors, and did the like with other factors in their employment in said city.
The plaintiff then introduced evidence tending to show that the original bill was sent to G. V. Thompson by said E. M. Wright & Co., who corresponded with said Thompson in their own names, disclosing no sort of agency for the bank; that he procured the renewal of said bill at their instance and by their instruction, and sent it to them when obtained; that he had no communication with the bank, and was never at any time in any respect its agent, and did not inform it or Wright & Co. of the post office address of Merritt Cox or Whitlock, and was not inquired of as to either, and afterward had no further connection with the bill.
The court instructed the jury that the bills of exchange were in law payable in the City of New York, notwithstanding the plaintiffs may have known, before making acceptance and endorsement thereof, that the acceptors, Cox & Cowan, actually resided at Hopkinsville; that if the jury believed that the notary made reasonable and diligent inquiry for the acceptors at their place of business in New York, at the place or places frequented by them in that city, and could not after such inquiry find them or their place of business, then the demand of payment during business hours on the day of the maturity of the bill at the place so frequented by them in the City of New York was sufficient; that if the bank did not know the post office address of the drawer, Merritt Cox, and the endorser, J. C. Whitlock, and if the notary made inquiry as to their several post office addresses of Wright & Co., who had assigned the bills to the plaintiff, and who were the correspondents of the acceptors, and in the judgment of the notary were likely to be informed as to such post office addresses, and
who professed to know them, and was informed that their post office address was Hopkinsville, Ky., and if the notary transmitted notices on the day after the protest by mail, postpaid, to the drawer and endorsers at the post office address so ascertained by the notary, such notice of protest was good to bind the drawer and endorsers respectively.
The defendants excepted to these several instructions, and also made several requests for instructions, each of which was refused.
There was a verdict and judgment for the plaintiff. The defendants, Merritt Cox and Whitlock, then sued out this writ of error.
In the second case, the facts are in substance identical with those in the first case except that J. D. Clardy was the payee and endorser of the bill.