1. A party in Illinois transmitted to bankers residing in a city
in Mississippi a note for collection which was there dated, but did
not inform them nor were they aware of the residence of the maker.
The only instruction sent was that the note was to be collected if
paid, and if not paid on presentment it was to be protested and
notice of nonpayment sent to the endorser. In due time they put the
note in the hands of a reputable notary of that city for the
purpose of presentment and demand, and of notice to the endorser
should there be a default of payment.
Held that they are
not liable to their correspondent for the manner in which the
notary performed his duty.
2. The notary is a public officer, and when he received the
note, he, according to the ruling of the supreme court of that
state, became the agent of the holder, and for failure to discharge
his duties he alone is liable.
3. The duty and liability of bankers as collecting agents
stated, and the authorities bearing upon their responsibility for
the acts of the notary to whom the notes sent to them for
collection are delivered for presentment, demand, and protest,
cited and examined.
The facts are stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
The defendant in the court below is the surviving partner of the
firm of Britton & Koontz, which was engaged in the banking
Page 104 U. S. 758
business at Natchez, in the State of Mississippi, in 1874 and
1875. The plaintiff in the court below, Niccolls, was at that time
a citizen of Illinois, and the present suit is brought by him to
recover damages from the surviving partner of the firm for its
neglect to present for payment to the maker, at their maturity, two
promissory notes sent to it for collection, by reason of which the
liability of a responsible endorser was released.
The facts in the case are briefly these:
In April, 1874, the plaintiff was the holder of a promissory
note of one John I. Lambert for $3,666.66, dated at Natchez, April
24, 1872, and payable to his order two years after date, with
interest at the rate of eight percent per annum. The note was
endorsed by three parties besides the payee -- J. M. Reynolds, John
Flemming, and J. S. Everet. Flemming's endorsement was without
recourse to him; the other endorsements were without any such
restriction upon the liability of the parties.
In April, 1874, the plaintiff caused this note to be sent,
through a banking house in Bloomington, Illinois, to the firm at
Natchez for collection. The only instructions accompanying it were
that it was to be collected if paid, and if not paid on presentment
it was to be protested and notice of nonpayment sent to the
endorsers.
In April, 1875, the plaintiff was the holder of another note of
the same maker, identical in amount, date, and terms with the first
except that it was payable in three years after date, and it was
endorsed in like manner by the same endorsers. This note matured on
the 27th of that month. Some days previously, the plaintiff sent it
to the firm at Natchez with instructions to collect it if paid, and
if not paid to have it delivered to a protesting officer for
protest, and to give notice to the endorsers.
No information as to the residence of the maker was given to the
firm with the notes, nor does it appear that either member of it
had, then or subsequently, any knowledge on the subject. The
plaintiff himself was ignorant of it. He resided, in fact, on his
plantation, twelve or fifteen miles from Natchez; he had no
domicile or place of business in that city. The notes not being
paid at their respective maturities -- the first one on the 27th of
April, 1874, and the second one on the 27th of
Page 104 U. S. 759
April, 1874 -- before the close of banking hours on those days,
were handed by the firm to a notary public of the county, with
instructions to demand payment of them, and if they were not paid,
to protest them and send notice of nonpayment to the endorsers. No
other directions were given. The notary knew that the maker resided
on his plantation and had no place of business in the city, but he
inquired for him at the post office, the city hall, and the
courthouse -- three of the most public places there -- and, not
finding him, protested the notes for nonpayment and gave notice
thereof to the endorsers.
The plaintiff soon afterwards brought suit against the maker and
also against the endorser, Everet, which proceeded to judgment and
execution, but nothing was obtained from the parties. Suit was also
brought against Reynolds, the first endorser, in which judgment
passed for the defendant on the ground that due presentment of the
notes to the maker and demand of payment had not been made at their
maturity, by reason of which the endorser was released from
liability. It is admitted that if judgment had been rendered
against Reynolds, the money due upon the notes might have been
collected upon execution. The plaintiff thereupon brought the
present action.
The notary testified that in his endeavors to make presentment
of the notes for payment, he had acted upon his own opinion as to
his duty, without instruction from the firm, and because he
considered that the notes, being dated at Natchez, and no place of
payment being stated, the place of presentment was, in law, at
Natchez, and not at the marker's domicile outside of the city.
The surviving partner, Britton, testified that it was always the
custom of the firm when it had notes for collection, whether its
own or those belonging to others, to send through the post office a
notice of their amount and of the date of their maturity to the
proper parties a reasonable time before the notes became payable,
and if payment was not made at their maturity, to place them in the
hands of a notary for presentment and protest; that this course was
pursued with respect to the notes in question; that Koontz, the
deceased partner, who, it would seem, took special charge of the
business of protesting paper
Page 104 U. S. 760
left with the firm for collection when that was necessary, had
inquired of several persons coming into the banking house as to the
residence of the maker of the notes, and on one occasion left the
house for the express purpose of trying to ascertain it, and
returned stating that he had not succeeded, and that "the notary
would have to comply with the law in such cases and present at
several of the most public places." He also testified that he was
"certain that Koontz made diligent efforts to ascertain Lambert's
(the maker's) place of residence, and that they were
unsuccessful."
Upon the facts and testimony as stated, the defendant, among
other things, requested the court to instruct the jury in substance
that if the bankers had no knowledge of the residence or place of
business of the maker and were unable, after diligent inquiry in
the City of Natchez, to ascertain the same, and thereupon, at the
maturity of the notes, handed them to a notary public for the
purpose of having presentment made thereof to the maker for payment
and of having them protested in case of nonpayment and notice
thereof given to the endorsers, then the bankers were not liable
for negligence in performing the duties entrusted to them nor for
failure of the notary to discharge the duties required of him with
respect to the demand of payment.
We do not give the precise language of the instruction asked,
but only its substance and purport. The court refused it, and
instructed the jury in substance that if it was the duty of the
bankers to perform such acts as the law required to charge the
endorsers upon the notes, which were to present them to the maker
for payment on their last days of grace respectively, and upon
nonpayment to give notice thereof to the endorsers, and that the
bankers were not exonerated from this duty by the delivery of the
notes to the notary for their performance unless it was within a
reasonable time for him to present the notes to the maker, and to
demand payment, on the days they respectively became due, at his
residence or place of business. To the refusal of the instruction
asked and to those given an exception was taken. The plaintiff
recovered judgment for the amount due on the notes, and the case is
brought here for review.
Page 104 U. S. 761
The notes being dated at Natchez, the presumption of law, in the
absence of other evidence on the subject, is that that was the
place of residence of the maker, and that he contemplated making
payment there. The duty of the bankers as collecting agents was
therefore to make inquiry for his place of business or residence in
that city, and if he had either, to make there the presentment of
the notes, but if he had neither, to use reasonable diligence to
find him for that purpose, or if the employment of a notary public
for that object was sanctioned by the usage of bankers or by the
law as declared by the courts of the state, instead of making the
presentment and demand personally, they could have placed the notes
in his hands for the performance of that duty. As it turned out
that the maker had neither domicile nor place of business in the
city, and was absent at the time from it, no demand upon him there
was possible, nor was that essential to charge the endorsers.
The law on this subject we consider to be well settled, as will
be seen by an examination of the numerous adjudged cases as to what
constitutes due presentment and demand of payment of commercial
paper, and what will excuse both. The only point upon which we find
any marked difference of opinion in them respects the liability of
the collecting bankers for the manner in which the notary, to whom
the notes are delivered for presentment and protest, discharges his
duty.
In the State of New York, the doctrine obtains that bankers to
whom notes are entrusted for collection are responsible for the
failure of agents employed by them in the presentation of the notes
to the maker and in protesting them when not paid, though the
agents are notaries exercising a public office and especially
charged with the performance of such duties. In the case
Allen
v. Merchants' Bank of New York, it was decided by the Court of
Errors of that state that the liability of the bank extended to any
neglect of duty by which any of the parties to a bill are released,
whether arising from default of its own officers or servants, or
its correspondents at a distance, or agents employed by them.
Previously a more limited liability was supposed to rest upon a
collecting bank. In that case, the bill was drawn in New York upon
parties in Philadelphia
Page 104 U. S. 762
and placed in the defendant's bank of the former city for
collection, and by it forwarded to a bank in Philadelphia. The
latter bank handed it to a notary to present for acceptance. He
presented it, but omitted to give notice of its nonacceptance, by
which a responsible endorser was released. The action was against
the collecting bank to recover the amount of the bill, and was
brought in the Superior Court of the City of New York, where the
jury was charged that the defendant was, upon general principles of
law, independently of any custom or usage or of any agreement
express or implied, only bound to transmit the bill to Philadelphia
in due time to some competent agent, and that it was not liable
fore his negligence or omission in giving notice of its
nonacceptance. Judgment having passed for the defendant, the case
was taken to the supreme court of the state, and was there
affirmed. That court, speaking through Mr. Justice Nelson, said
that
"A note or bill of exchange left at a bank and received for the
purpose of being sent to some distant place for collection would
seem to imply, upon a reasonable construction, no other agreement
than that it should be forwarded with due diligence to some
competent agent to do what should be necessary in the premises. The
language and acts of the parties fairly import so much, but nothing
beyond it. The person leaving the note is aware that the bank
cannot personally attend to the collection, and that it must
therefore be sent to some distant or foreign agent,"
and that there seemed to be nothing in the natural of the
transaction which could reasonably imply an assumption for the
fidelity of the agent abroad. 15 Wend. (N.Y.) 482. The case being
carried to the Court of Errors, the decision of the supreme court
was reversed and the doctrine declared that the bank was
responsible for all subsequent agents employed in the collection of
the paper. 22
id. 215. The reversal was by a vote of
fourteen senators against ten; Chancellor Walworth, who composed a
part of the Court of Errors in cases appealed from the supreme
court, voting with the minority and giving an opinion for
affirmation of the judgment. Senator Verplank delivered the
prevailing opinion. The decision has since been followed in New
York, and its doctrine, we believe, has been adopted in Ohio.
Page 104 U. S. 763
But in the courts of other states it has been generally
rejected, and the views expressed by the supreme court
approved.
In
Dorchester and Milton Bank v. New England Bank, it
was held by the Supreme Court of Massachusetts that when notes or
bills, payable at a distant place, are received by a bank for
collection without specific instructions, it is bound to transmit
them to a suitable agent at the place of payment for that purpose,
and that when a suitable sub-agent is thus employed, in good faith,
the collecting bank is not liable for his neglect or default. In
giving its judgment, the court referred to the ruling in
Allen
v. The Merchants' Bank, and observed that it was opposed to a
number of decisions of great authority, and, in its opinion, was
not well founded in principle; that if the bank in that case acted
in good faith in selecting a suitable sub-agent where the bill was
payable, there was no principle of justice or public policy by
which the bank should be made liable for his neglect or
misfeasance. 1 Cush. (Mass.) 177.
In the Supreme Courts of Connecticut, Maryland, Illinois,
Wisconsin, and Mississippi, the doctrine of the supreme court of
New York in the case reversed and of the Supreme Court of
Massachusetts in the case cited has been approved and followed. In
the New York case, in the Court of Errors, it was conceded that the
general liability of the collecting bank might be varied and
limited by express agreement of the parties or by implication
arising from general usage, and in some of the cases in other
states, proof of such general usage of bankers in the employment of
notaries was permitted, and a release thereby asserted from
liability of the bank for any neglect by them. Thus in
Warren
Bank v. Suffolk Bank, 10
id. 582, a note left with
the latter bank for collection had been placed at the close of
banking hours with a notary public for presentment and protest, and
by his negligence in presenting the paper to the maker, the
liability of an endorser was released. The bank was thereupon sued.
On the trial, proof was offered to show that in Boston, where the
case arose, it was the invariable usage of banks, when notes were
sent for collection by other banks, to keep them for payment until
the close of banking hours on the day they became payable,
Page 104 U. S. 764
and if not then paid, to put them into the hands of a notary
public for demand on the maker and protest, and that the defendant
had pursued that course. The court below decided that if there were
negligence on the part of the notary, the evidence was immaterial,
and that the usage did not constitute a defense. The supreme court
reversed this decision and held that the evidence was admissible.
"It would, we think," said the court,
"have authorized the jury to find an implied agreement or assent
to the employment of a sub-agent or notary public for the purposes
of making a demand on the maker, requiring only in the collecting
bank due diligence and care in selecting the notary, or a general
usage binding certainly those who were conversant of it. It is no
sufficient answer to this to say that it was not absolutely
necessary to employ a notary in a case like the present to certify
to the demand and protest. If this was the well established course
of business, and known to the plaintiffs when they sent to the
defendants this note for collection, they must be bound by it."
The court also said that when the nature of the business in
which an agent is engaged requires for its proper and reasonable
execution the employment of a sub-agent, the principal agent is not
responsible for the default of the sub-agent, provided a proper one
by selected, and it was of opinion that if the usage of the banks
authorized the employment of a sub-agent holding an official
character, it then became a case of sub-agency, with its
incidents.
In the case at bar, there was no proof of any general usage of
bankers at Natchez as to the employment of notaries public in the
presentment and protest of notes left with them for collection. But
we have before us the decisions of the Supreme Court of
Mississippi, and they are of equal potency to limit the liability
of the bankers for the negligence of the notary. We can look into
those decisions to ascertain what the law is in that state, and how
far it has modified what would otherwise be deemed the general law
on any particular subject. By them we are informed that it is the
settled law of the state that
"a bank receiving commercial paper as an agent for collection
properly discharges its duties in case of nonpayment by placing the
paper in the hands of a notary public to be proceeded
Page 104 U. S. 765
with in such manner as to charge the parties to it, and secure
the rights of the real owner, and that the bank is not liable in
such cases for the failure of the notary to perform his duty."
This is the language used by that court in
Bowling v.
Arthur, 34 Miss. 41; and in support of it
Tiernan v.
Commercial Bank of Natchez, 7 How. (Miss.) 648, and of
Commercial Bank of Manchester v. Agricultural Bank, 7 S.
& M. 592, are cited. And the court adds that these cases decide
that the notary is the sub-agent of the holder, through the bank,
and as such is liable to him, and it is satisfied that the rule
declared in them is correct.
By a statute of Mississippi, notaries are authorized to protest
promissory notes as well as bills of exchange, and they are
required to keep a record of their notarial acts in such cases, and
the record is admissible in evidence in the courts of the state
just as though the notary were present and interrogated respecting
the matters recorded. And it was decided in the case of
Bowling
v. Arthur that, under the statute, it is a part of the duty of
the notary, when protesting paper, to give all notices of dishonor
required to charge the parties to it.
Judged by the law of Mississippi, the bankers, Britton and
Koontz, discharged their duty to the plaintiff when they delivered
the notes received by them for collection to the notary public.
There is no question as to his habits or qualifications. He was not
connected in business with the bankers nor employed by them except
in his official character. What more could they have done, as
intelligent and honest collecting agents desirous of performing all
that was required of them by the law, ignorant as they were of the
residence of place of business of the maker of the notes and having
unsuccessfully made diligent inquiry for them? Had they known that
the maker resided on his plantation without the city limits in time
to make the demand upon him, it might perhaps have been incumbent
upon them to forward the notes there for presentment. It is not
necessary to express any opinion on this head, for the only
question is whether, on the knowledge they possessed, they
discharged their whole duty. For the reasons stated, we are of
opinion that they did all that the law required of them.
Page 104 U. S. 766
The notary, it is urged, was aware of the residence of the
maker; but we do not perceive how this could affect the liability
of the bankers. We are not prepared to say that even with this
knowledge he was bound, receiving the paper at the close of banking
hours, to go out of the limits of the city to present it to the
maker. He took the paper to inquire for the maker in the city, not
outside of it, and to make presentment if he were found. If his
knowledge of the residence of the maker could have required him to
leave the city, so it would have done had the maker resided one
hundred miles distant instead of twelve or fifteen. But on this
head we are not called upon to express an opinion. It is enough
here that the notary was not in this matter the agent of the
bankers. He was a public officer whose duties were prescribed by
law, and when the notes were placed in his hands in order that such
steps should be taken by him as would bind the endorsers if the
notes were not paid, he became the agent of the holder of the
notes. For any failure on his part to perform his whole duty he
alone was liable; the bankers were no more liable than they would
have been for the unskillfulness of a lawyer of reputed ability and
learning to whom they might have handed the notes for collection in
the conduct of a suit brought upon them.
The fact that in the action against the endorser, Reynolds,
judgment passed in his favor, on the ground that due presentment
and demand of payment had not been made of the maker, can have no
weight in this case. The bankers were not parties to that action,
had no control over its management, and are not bound by the
judgment rendered. If the plaintiff was not satisfied with that
judgment, he should have appealed from it. The rulings of the court
in that case are not authority in this.
It follows from these views that the instruction refused should
have been given, and that the instructions given should have been
refused. The judgment must therefore be reversed and the cause
remanded for a new trial, and it is
So ordered.
MR. JUSTICE HARLAN concurred in the judgment.
MR. JUSTICE GRAY did not sit in this case.