Lindenberger v. Beall/Opinion of the Court

ERROR to the Circuit Court for the District of Columbia.

Assumpsit against the defendant, (Beall,) as endorser of a promissory note, drawn by one Tunis Craven, dated at Baltimore, October 22d, 1811, in favour of the defendant, and by him endorsed to the plaintiffs, for 191 dollars 17 cents, negotiable at the bank of Washington, payable six months after date. At the trial the note was given in evidence, and the handwriting of the drawer and endorser admitted. The plaintiffs farther proved, by a notary, that the note was, by him, demanded of the drawer, on Saturday the 25th of April, 1812, being the day on which it became payable, that is, the last day of grace. And not being paid, notice of the non-payment thereof was enclosed in a letter addressed to the defendant, at the city of Washington, and put into the post-office at Georgetown. The notary testified, that he had no recollection of these facts. and only knew them from his notarial book, and the protest made out at the time; by which it appeared, that a demand was then made of the drawer, and the protest made, and notice sent; and from its being his invariable practice to give notice either personally, or by letter, to the endorsers on the same day. Nor did he then recollect that he addressed the letter to the defendant in Washington, but he presumed from his book, and protest, and his uniform practice, that if he did not know where the defendant lived, (which was probably the case when he received the note,) he inquired, and ascertained his residence, and addressed it properly. Upon which evidence the defendant's counsel prayed the Court to instruct the jury, that the above proof of notice was insufficient to charge the defendant as endorser of said note, and that the plaintiffs were not entitled to recover. Which opinion the Court gave. The plaintiffs' counsel excepted to the opinion. A verdict and judgment thereon was rendered for the defendant by the Court below, and the cause was brought by writ of error to this Court.

Mr. Key, for the plaintiff, was stopped by the Court.

Mr. Jones and Mr. Law, for the defendant, contended, that the notice was insufficient: (1.) because it was on the third day of grace; and, (2.) that there was no sufficient proof of notice having been sent by mail, or of the contents of the letter sent; and that before secondary evidence would be let in to prove the contents, notice should have been given to the defendant to produce it.

The COURT were unanimously of opinion, that after demand of the maker on the third day of grace, notice to the endorser on the same day was sufficient, by the general law merchant; and that evidence of the letter containing notice having been put into the post-office, directed to the defendant, at his place of residence, was sufficient proof of the notice to be left to the jury, and that it was unnecessary to give notice to the defendant to produce the letter before such evidence could be admitted.

Judgment reversed.