President, Directors & Co. of the Bank of the United States v. Lane, 10 N.C. 453, 3 Hawks 453 (1825)

June 1825 · Supreme Court of North Carolina

10 N.C. 453, 3 Hawks 453

The President, Directors and Company of the Bank of the United States, v. Lane.

>From Cumberland^

The rule, that notice to a distant indorser should be sent to the posf office nearest to his residence, was founded on the presumption that the information would most speedily be given in such way; but the rule is subject to modification; and the true inquiry is, was the notice directed to that post office which was most likely to impart to the indorser the earliest intelligence, though it may not be the nearest; if it was, it is sufficient.

This was an action of assumpsit, brought against the defendant as endorser of a promissory note made by one Harvey, dated the 10th of July, 1821, and payable sixty days after date, at the office of the plaintiffs in Fayette* ville.

At the trial, which was had in the Court below before Daniei, judge, the question was, whether the defendant had been fixed by due notice of the dishonor of the note. To show the notice, the plaintiffs offered in evidence, the protest of a notary public; the substantial parts of which were, that he the notary, on the 26th of September, 1821, presented the note at the office at which it was paya-and made demand, &c., and the same, not being paid, he protested, &c.; and the protest then stated, that, “ on same evening, by letter addressed to I. Lane, Ash-borough, Randolph county, N. C., which he deposited in the post office at Fayetteville, the endorser was informed of the default of the drawer, and that he would be held responsible for its payment.” The following facts then appeared in evidence: The mail to Ashborough goes by the way of Raleigh to Ashborough (Randolph Court House,) on the Monday following the protest; that Lane the defendant was the high sheriff of Randolph county at that time, and that the Superior Court for that county began its sittings on the same Monday on which day the mail would arrive at Ashborough. The defendant was in the habit of attending the Superior Courts in person during the whole term. The defendant lived eighteen miles from Ashborough, and within three or four miles of a post office at Long’s, where the mail arrived once a week from Raleigh by Chapel Hill, and then proceeded to Lexington. Some letters directed to the defendant at this of-iice had been sent to him by the post master, as opportunities offered. Lane was not in the habit of sending regularly for his letters to this office, but sometimes his servant when he went to Long’s mill would call for them.

Upon this evidence, the presiding judge instructed the jury, that the plaintiffs should give the defendant notice in a reasonable time of the demand and non-payment by the drawer; but if notice was’ given by letter sent by the next mail directed to the endorser, it would be sufficient, where the indorser lived at the distance that it had been proved the defendant did. But it was the diity of the plaintiffs to make reasonable efforts to ascertain where the endorser lived, and send the letter to that office where it was most probable he would get the earliest intelligence of the transaction, If from the evidence they should be of opinion that the defendant would have gpt the letter at an earlier day by its being directed to Long’s office instead of Ashborough, then they should find for the defendant; but if they should be of opinion that he would or might have received the letter at the Court House as early or earlier than he would at Long’s post office, then they should find for the plaintiffs. That the question was, did the plaintiffs use due diligence, and give the defendant notice in a reasonable time?

The jury, under these instructions, found a verdict for the plaintiffs. A motion was made for a new trial, on the ground of misdirection, and overruled; and judgment being rendered lor the plaintiffs, the defendant appealed to this Court.

Taylor, Chief Justice.

The circumstance that the defendant was sheriff of the county, and in the constant habit of attending the Courts the whole time of their sitting, would seem to make it likely that a letter directed to Ashborough would reach him sooner than one directed to Long’s. At the former place he was on the spot for a week at a time, and from his public duties must unavoidably have been under the necessity of calling at, or sending to the post office. At the latter place his servants only occasionally called as they went to mill, and the post master would only send letters to him as opportunity offered. This view of the case derives additional strength from the tact that the Superior Court began on the Monday following the date of the protest, and that on that day the mail bearing the notice would arrive at Ashbo-rough where the defendant then was. It would be laying down a rule of very embarrassing, if not impraticable application in this state, to compel indorsees to ascertain the nearest office, lioWevér obscure, to the indorser’s abode, while there was a public and known one at the Court House to which his business led him frequently. There are so many of these petty offices scattered through the state, some of which glimmer for a short period and then go out, that the inquiry into their existence would occasion more delay, than sending the notice at once to a well established office in the same county. The rules es-tafoiished on this subject, however just and convenient in commercial cities, can scarcely be usefully applied to the transactions in this state, where the parties reside at points remote from each other. But even when the rule was laid down that the notice must be sent to the post office nearest to the party, it was for the sake of carrying information to them, and upon the presumption that the nearest post office would best answer that purpose. This was the general rule, which was afterwards so modified, that a notice was held good if sent to an office to which the party usually applied for his letters, although it was in a different town from that in which he resided. And after all, the question settles down to the inquiry, not whether the notice was directed to the nearest post office to the defendant, but to that which was most likely to impart to him the earliest intelligence. Under the circumstances of this case I think it was, and that the verdict is right.

The rest of the Court concurring;

Judgment affirmed*