Fields v. Mallett, 10 N.C. 465, 3 Hawks 465 (1825)

June 1825 · Supreme Court of North Carolina

10 N.C. 465, 3 Hawks 465

Fields v. Mallett.

"I I From Cumberland. J

A sealed note is not entitled to days of grace, as between indorsee and indorser.

When the maker of such a note was a physician, having a shop Snd a dwelling house in different parts of the town; and when the note became due, the indorser informed the holder that the maker was fifty miles out of town, and would pay on his return; it was held; that under such circumstances an application at the shop was all that the law required, and that an application at the dwelling house of the maker was unnecessary.

. „ls.su vpsir on a single bill against the'defendant as endorser, and plaintiff declared, first, on a sealed bill,, which had been lost by accident: secondly, on.a sealed bill for $957 50, endorsed'by defendant: and .thirdly, on a sealed bill for g>200.

The facts were these: Doctor Andrew Scott had made the bill in question, payable Ou the 4th of September, 1821, to the defendant, and the'dhferidant had made a bill payr able to Scott at the same time for the like sum, and Scott and the defendant respectively had endorsed these bills to the plaintiff. Scott had a family, and resided in the' town of Fayetteville, and his sliop was at sonic distance from his dwelling-house.

On the 5th of September,1S9A,the plaintiff by his agent, applied to the defendant, who paid his own note, and ■was requested to pay Scott’s, to which he replied, tbatit was enough for him to pay his own, and that Scott would pay his when he returned from Chatham county, whither with his family he had gone on a visit. The agent had been at the shop of Scott to demand payment before he applied to the defendant; the shop -was shut up, and no one there ; the agent understood that Scott had a house in town, hut he made no inquiries for it and no demand at it.

On the 7th of September, 1821, the bill wras protested, and the protest stated a demand at Scott’s sliop, and notice by letter left at defendant’s counting house. About a fortnight after, the bill was presented by the agent to Scott, and not paid, hut no notice of this personal demand was ever given to defendant.

The bill was proved to have been given for $957 50, payable September 4th, 1821. The hill exhibited in evidence had been partly destroyed by having the left hand lower corner burned off so as to destroy the words fifty-seven dollars fifty cents, which commenced a line of the writing. When the bill was presented to Scott in this burnt condition, he, without the knowledge or consent of the defendant, interlined the words which the fire had destroyed; the agent had no instructions to request Scott to do so, and in fact objected, but Scott did it, saying it could do no ham. The plaintiff, when the agent returned with the note thus interlined, said that the agent should not have permitted it to be done.

The plaintiff offered the bill thus mutilated and interlined, but having thereon the defendant’s endorsement, in support of his second count.

It was proved that the plaintiff had papers, and among others Scott’s note then entire, looking over them, before the fire; in about an hour afterwards the witness returned, and the plaintiff had the note in his hand burned as above described: the burning of the note by accident was left on this evidence as a matter of fact for the jury; and they were instructed that if they believed all the evidence of plaintiff, still he could not recover, as a demand at the shop, and that shut up, was not sufficient if the drawer had a house in town in which he resided; that the plaintiff should at least have made inquiry whether the note would have been paid there before lie gave notice to the defendant: the jury was further instructed, that if Scott made the interlineation on the face of the paper without the consent or authority of the plaintiff, it would not operate to discharge the endorser.

Yerdict for defendant, new trial refused, judgment and appeal.

Gaston, for the appellant.

There was a sufficient demand and notice on the 5th of September. If the obligor is not entitled to days of grace, the demand on that day was proper. Jaiwis v. M’Main, (3 Hawks 10.)

The demand was made at the shop, and the endorser himself gave information to the holder of the maker’s absence: the shop was the maker’s place of business, and therefore the proper place for a demand: the holder was not under the necessity of going out of Fayetteville in quest of the maker. 2 Thill. Ev. 19. amt note. Kyi on Bills 88. Mortimer 15. § 24. 2 Caines 121. Chitty on Bills 260 ])■ note. 193. note.

What the indorser told the holder as to Scott’s absence was true or not true: if true, then Scott and his family were absent, and there was no pretence that any one was left'to attend to his business; “ Scott would pay on his return:” if untrue, then the indorser cannot avail himself of his own fraud. 4 Mass. It. 53.

But at all events the demand and notice, on then'll was sufficient, the act of 1819, Ch. 1003. JV*. It makes thepro-test of the notary prima facie evidence; the proof to rebut it must be furnished by the other side; if there was an Agent, the defendant should show it.

Ruffin, contra.

As between indorser and indorsee, days of grace are to be allowed on sealed notes ; when they arc negotiated, they become bills of exchange or promissory potes by the express terms of the statute ; in practice, the rule has always been thus held. If not entitled to days of grace, the defendant here was'entitled to a verdict, for the demand should have been made on the day the note become payable, the 4th of September, am! not the 5th. ■ ’

If entitled to days of grace, the notice given on the 5th is not sufficient, for the note was not then payable; and the demand on the 7th by the notary is not good, unless it be shown that a demand at the shop when Scott was in town, is sufficient: for Scott may have returned, he may have had an agent. Is a demand at the shop sufficient? Personal demand is generally required ; there are cxccpr-tions to this, founded on the ground that no personal demand can be made. Where the maker has two places of business, or two dwellings, a demand ought to be made at both, because such a course may be the means of finding the maker, to. make á personal demand. If on the 5th, the holder is informed that the maker is within fifty miles, ought he not (supposing days of grace allowable on the instrument) to make a personal demand by the 7th, as in the case of a removal of residence? 2. Strange 1087. Chii-tij on Bills 213, 317.

It is important that the mode of presentment and: demand should be kept, certain. In the case of a merchant;, bills and notes should, be presented at his counting-house, because he keeps it always open for the transaction of his> business ; but in the case of a physician it is different, Ins-business calls him from his office, and a clerk in his business is neither- necessary por usual.

Taylor, Chief Justice,

delivered the opinion of a majority of the Court. '

. , . . ■ It is the opinion of a majority of the Court, that* the bond executed by Scott, fell due on the fourth of Septem-1 her, and that a demand on the fifth, the plaintiff living out of town, was a sufficient exertion of diligence. That the information of the defendant to the agent that the maker was fifty miles out of town, and that he would pay the note on his return, rendered an application at the dwelling house of the latter unnecessary; but that under the circumstances of the case, an application at the shop was all that the law required, where if any one had been left to pay the note, he was most probably to be found, though if such had been the case, it would have been known to the defendant. For which reason a new trial is awarded.