Pierce v. Indseth

This is an action by the plaintiff in the court below, Ole A. Indseth, against the defendants, composing the firm of Pierce, Simmons & Co., on a foreign bill of exchange, payable at sight to his order, drawn by them at Red Wing, in Minnesota, on the Christiania Bank, in Norway, which is as follows:

'Exchange 15,441 50-100 kroner, per stamp 2c.

'PIERCE, SIMMONS & CO., BANKERS, RED WING, MINNESOTA, February 1, 1877.

'At sight of this original of exchange (duplicate unpaid) pay to the order of O. A. Indseth 15,441 50-100 kroner, value received, and charge same to account of Sk. P. I. & Co., Chicago, as per advice from them.

'PIERCE, SIMMONS & CO.

'To Christiania Bank of Kredit Kasse, Christania, Norway.'

The value of these kroners in our money was $4,469.35.

Indseth resided at the time near Eidsvold, in Norway, and the bill was purchased by his agent in Minnesota, who forwarded it to him. He received it February 27, 1877, and retained it in his possession until April 12th following, when he presented it to the bank for payment, which was refused. He then caused the bill to be protested by a notary of Norway for nonpayment. The drawers were notified of its non-payment by letter from the plaintiff, which they received at Red Wing as early as May 15, 1877, and also by the original certificate of protest of the notary, which, with a translation, was at that time shown to one of them by the agent of the plaintiff, to whom the document was sent for that purpose.

It appears from the findings of the court below that the drawers had no money to their credit with the Christiania bank when the bill was drawn, but depended for its acceptance and payment upon advices to the bank by Skow, Peterson, Isberg & Co., bankers, at Chicago. That firm failed and made an assignment on the twenty-first of March, 1877. It had, however, from February 28th to that date, inclusive, to its credit with the bank, money sufficient to pay the bill, but no portion of it had been set apart for that purpose, and it has been since paid to the assignee of the firm. On the fifteenth of February, 1877, the drawers wrote to the payee a letter stating that, fearing their draft might not be paid, they had caused a cable dispatch to be sent to Christiania directing payment, but there was no evidence that the bank received such a dispatch, if sent, or gave them any credit on it.

Eidsvold, at or near which the plaintiff resided, is distant about 50 miles from Christiania, the place where the bank was situated, and between them there was daily communication by mail and by railway.

In proof of the presentment of the bill to the bank and the latter's refusal to pay the same, a copy of the notary's certificate of protest was given in evidence by the plaintiff, the defendants having stipulated for the admission of a copy with the like effect as the original, which was needed elsewhere. Subsequently the defendants themselves produced the original for the purpose of showing its character, insisting, at the time, that it had no authenticity as the act of the notary, and was not, therefore, competent evidence of the presentation and non-payment of the bill. To meet the objection of unnecessary delay in presenting the bill the plaintiff gave in evidence, against the objection of the defendants, the deposition of a lawyer of Norway as to the law of that country respecting the presentation of bills of exchange for payment. Exception was taken to the ruling of the court in its admission. It appeared, from the deposition, that by the law of Norway, the holder of a foreign bill of exchange, payable at sight, is allowed a year after its date within which to present it to the drawee for payment; and that the drawer is not relieved from liability, if the presentation be not made within the year, unless he can prove that owing to the delay he has suffered a loss in his accounts with the drawee. Evidence was offered by the defendants to show that the plaintiff, himself, had admitted his negligence in presenting the bill, but on objection of counsel it was excluded, to which ruling an exception was taken. The court found in favor of the plaintiff for the full amount of the bill, and judgment having been entered on the finding, the case was brought to this court for review.

''Chas. E. Flandrau'', for plaintiffs in error.

E. C. Palmer, for defendant in error.

FIELD, J.

The certificate of the protest of the bill of exchange by the notary in Norway was properly received in evidence. It is in due form, and bears what purports to be the seal of the notary. The seal, it is true, is impressed directly on the paper by a die with which ink was used. This is evident from inspection of the original, which has been transmitted to us from the court below for our personal examination. The use of wax, or some other adhesive substance upon which the seal of a public officer may be impressed, has long since ceased to be regarded as important. It is enough, in the absence of positive law prescribing otherwise, that the impress of the seal is made upon the paper itself in such a manner as to be readily identified upon inspection.

The language used in Pillow v. Roberts, reported in 13 How. 472 as the sufficiency of a seal of court impressed upon paper instead of wax or a wafer, is applicable here. Said the court, speaking by Mr. Justice GRIER: