Hubbard v. Troy, 24 N.C. 134, 2 Ired. 134 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 134, 2 Ired. 134

JACOB HUBBARD vs JOHN B. TROY.

Protest of an order or inland bill of exchange is not necessery to enable the holder to recover principal and interest. Notice in due time of non-acceptance or non-payment is all that is required for that purpose.

It is generally held that the holder must give notice of non-acceptance or non-payment on the next day or by the next post, when the parties live in diffeienl places.

A delay in giving notice from the 10th, to the 24th of March held to he unreasonable and to discharge the drawer.

This was an appeal from the judgment of the Superior Court of Law of Randolph County at the Spring Term, 1841, his Honor Judge Pearson presiding.. The plaintiff declared in assumpsit on the following instrument in writing, to wit, “Feb’y 26th, 1837. Jonathan Chnrch Esquire, please pay to M. M. Troy or order, thirty two dollars and sixty eight cents, and charge yours, &c. John B. Troy,” which was endorsed, to the plaintiff by M. M. Troy for a valuable consideration.

The defendant pleaded the general issue. On the trial, the plaintiff, after reading the instrument declared on, offer, ed in evidence a letter from the plaintiff to the defendant dated “ Greensborough, 24th March, 1837,” in which he informed the defendant, that he had “received a short time since” from the endorser, M. M. Troy, an order on Jonathan Church for the sum above specified, and that he had “presented the order and Church failed to pay it off,” and that he had understood Church had made away with his property. He then adds, “ I have thought proper to give thee this information, believing that thee would do what is right and just in the case.” The plaintiff then by consent of the defendant’s counsel read a letter from John M. Logan to the defendant dated “ Greensborough, 20th May,- 1837,” in which he stated that he had received on the morning of that day a letter from him “requesting me to give you some information respecting an order of yours- to J. Church” — he continues, “ Jacob Hubbard handed me an order on Church from yon on the 10th March, 1837, or about that time to present to Church when I went to Jamestown. I think 1 presented the order on that day to him. He said it was not due until April, and he Would get the money from Washington City at that time and pay you according to the bargain he had made with you.” Logan further adds that he returned the order to the plaintiff, and told him what Church said, and “ that Church was bad to get money from at that time from what he learned’ when in Jameston.” When the plaintiff closed his case, the defendant’s counsel moved the Court that the plaintiff be nonsuited, 1st, on the ground that there had been no protest for non-acceptance as required by the act of Assembly (Rev. St. c 13', s. 2); 2dly, that the notice from the plaintiff to the defendant did not state that the plaintiff would not give Church, the drawee, any further credit, and that -he looked to the defendant for payment,- 3dly, that the plaintiff had not used due diligence in giving the defendant notice of the non-acceptance of the drawee.

A verdict was rendered for the plaintiff, forthe full amount of the order with interest from the date, subject however to be set aside and a nonsuit entered if the Coqrt should be of opinion for the defendant on the above points reserved. The. Court having sustained the defendant’s objections, ordered the verdict of the Jury to be set aside and a nonsuit entered, from which judgment the plaintiff appealed.

Mendenhall for the plaintiff

cited By'les on Bills, 148, 149. 2 Stra. 910. 2 Barn. & Aid. 696. Moore v Coffleld, 1 Dev. 247. Brittain v Johnson, 1 Dev. 293. Pons v Kelly, 2 Hay. 45. Plummer v Christmas, 2 Hay, 107.

No counsel appeared for the defendant.

Ruffin, C. J.

Notwithstanding the act of 1762, Rev. St. c. 13, s. 2, the action is maintainable for the principal and interest due on the order, although not protested for nonacceptance. In practice, inland bills have always been recovered on, to that extent, without a protest. Our statute is like those of 9 & 10 Will. 3, c. 17, and 3 & 4 Ann, c. 9, s. 4, from which it was probably taken. They all relate to damages and the costs of postage, brokerage, commission and the like — none of which can be recovered without protest. But it has long been held that the remedy given by those statutes is cumulative; and that, therefore, upon notice of non-acceptance or non-payment of an inland bill, a recovery may still be had at common law. Brough v Parking, 2 Ld. Ray. 992. Harris v Benson, 2 Strange 910. Windle v Andrews, 2 Barn. & Ald. 696. Hence, in a declaration on an inland bill, it is not necessary to set out a protest, as it is in the case of a foreign bill. In the latter case the protest is part of the custom of merchants, on which the liability of the drawer arises; and therefore the fact must appear on the record. Were there nothing more in this case than the want of a protest, the plaintiff would be entitled to judgment.

But we think he must fail for the want of diligence. We need not advert to the question, whether the bill was presented for acceptance in due time; for supposing it was, yet we think the notice to the defendant of non-acceptance was out of time, and for that reason he was discharged from liability on the bill. The plaintiff, by his agent, presented the bill on the 10th of of March, when the drawee denied the' debt to be due and refused to' accept. Moreover, it appears from the plaintiff’s letter that he had heard a report, that the' drawee had made away with his property. He then knew there was danger; and, yet, he postponed giving notice for fourteen days: — until the 24th‘ of March-. A holder ought to let the drawer of a bill know of its dishonor as soon as he' conveniently Can'. He need' not lay by every thing he has in hand, to do it immediately. But it is generally held, that-he must give notice the next day, or by the first post, when the parties live in different places-. We do’ not see how the' delay,- that occurred in this case, could be accounted for.But if it could, it has-not been; and without some explanation, it was undoubtedly unreasonable. The judgment-must be affirmed

Per Chr-ia-m-.- Judgment affirmed*.-