Brittain v. Johnson, 12 N.C. 293, 1 Dev. 293 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 293, 1 Dev. 293

William Brittain, ex’r. of Stephen Brown v. Thomas G. Johnson.

From Northampton.

The rule respecting notice to endorsers, varies with the pursuits of the parties. The same strictness is not required between farmers, resident in the country, as between merchants resident in towns. In the first case, what is due diligence, must be left to the Jury under the direction of the Court.

This was an action commenced before a Justice of the Peace against the Defendant, as endorse** of a single bond, dated February 13, 1825, and payable one day after date. The endorsement was stated to be for value received of the Plaintiff’s testator, and was dated February 16, 1825. On the trial, before RuppxN Judge, it was in evidence that the obligor, the Plaintiff’s testator, and the Defendant, were all farmers j that the ob-ligor and the Defendant lived together, and tiiat the Plaintiff’s testator resided in the same county, about seven miles from them. On the Saturday before the last Sunday in February, 1825, or on the Sunday next before the fast, (which day was not positively proved,) the Plaintiff’s testator made a demand on the obligor, who refused to pay the bond. N&tice of this was given to the Defendant on the next day, and he requested that the obligor might be pushed. On the next Monday a warrant was taken out against both the obligor and the Defendant; the Constable was directed to serve it on the obligor, and notify the Defendant of the fact, and if he did not then take up the bond, to execute it on him also. The Defendant refused to pay the amount due on the, bond, and was warranted. On the day of trial, a Justice could not be had, and the warrant was discontinued-»

Aftervyards, the present warrant was sued out against the Defendant alone, the obligor having absconded.

The presiding Judge instructed the Jury, that if they believed the testimony, the Plaintiff was in law entitled £() pccover> ^ verdict being returned according; to the -, ° charge, the Defendant appealed.

tjie jaS(. j[!lie term, the cause was submitted, by Hogg, for the Plaintiff, no Counsel appearing for the Defendant.

Cur. adv. vidt.

Taylor, Chief-Justice

Where the parties all reside in the same town, and are engaged in mercantile pursuits, or have, transactions with a bank, there is a common understanding, that the demand upon the maker must be made without delay, and notice promptly given to the endorser. The application of the strict rule to persons so situated, can seldom be productive of injustice, and this Court has considered itself warranted in requiring the utmost diligence under such circumstances. But the existence of such a rule among farmers living on their plantations, has never been recognized, and could not operate without manifest wrong. It would he unreasonable to require that a person in the country, receiving an endorsed note, should neglect the concerns of his plantation to attend solely to that particular business. He usually calculates on meeting the maker on the next occasion which calls the citizens together — a muster, a sale or a court, and then making a demand without, neglecting other affairs ; and in this arrangement there seems to be a tacit acquiescence.

Though it may be inconvenient to have several rules, applicable to different classes of persons, it is confessedly snore so, to have one applied to all, which is wholly unsuited to the habits, transactions, and experience of the greater number, it is impossible to lay down a rule in the abstract, which is equally just in its bearing on all persons to be affected by it; it must depend upon the circumstances of the case, and must: be determined by the Jury, under the directions of the Court. I think the facts of the case are such, as amount in law to reasonable diligence, considered in relation to the pursuits and the residence of the parties respectively, and tiiat there was no error in the charge of the Court.

Pee. Curiam. — Judgment affirmed.