Robertson v. Vogle
1788.
ROBERTSON et al. verʃus VOGLE.
I
N this action the Plaintiffs declared, as Indorʃees, upon a promiffory note, againft the Defendant as Indorʃor, both the parties refiding in the city of Philadelphia. It appeared, on the trial, that the note was drawn on the 10th April, 1786, and that tie was protefted for non-payment on the 12th June, 1786; but on the 5th of July and on the 23d of Auguʃt following, the Plaintiffs received feveral partial payments from the drawer, without attempting to give notice of the proteft to the indorfor, till after the laft of thofe payments, when the drawer had become greatly embarraffed in his circumftances. Nor was there, indeed, any other evidence of notice, previoufly to the commencement of the action, to March term 1787, than that the Plaintiff's clerk had frequently called at the Defendant's ftore, but was not certain that he had ever feen him, or left a note of his bufinefs.Ingerʃol moved for a non-fuit on two grounds: 1ft, Becaaufe the receipt of a part of the money from the drawer, is a difcharge of the indorfor for the whole ; and 2dly, Becaufe the Plaintiff's did not give reafonable notice of the proteft to the Defendant.
1ft. One the firʃt point he contended, that the indorfor of a promiffory note is only a warrantor that he wil pay the money if the drawer does not, and that if the indorfee receives a part he takes upon himfelf to give credit to the drawer and difcharges the indorfor. 1 Wills. 46. Hall v. Pitʃield 2. Stra. 745. Kellock v. Robinʃon S.P.
2d. With refpect to the ʃecond point he cited Term Rep. 167. Eaʃter. 27. Geo. 3. Tindol et al. c. Brown, where it is faid, that when a note is difcharged by the drawer, the holder muft give reafonable notice to the indorfor; that this means fomething more than making it known ; for it is enough that he fays the drawer has not paid, but he muft declare that he does not mean to give credit ; and, therefore, when the circumftances are afcertained, what is reafonable notice is a queftion of law and not of fact. As to the giving time, the holder does it at his peril, for it has never been determined that the indorfor is liable, where the holder has given credit to the drawer ; fo that the want of notice is tantamount to payment. Id. 712.
Sergeant and Barian, for the Plaintiffs, argued, 1ʃt, That the acceptance of a part fhall not prejudice the holder of a bill or note Marius 6.8.9.86.87 ; and, as upon the authority of this book, the Court had determined a former queftion,[♦] they faid it could not be fhaken, in the prefent inftance, by Wils. 46, which was not a decifion in the principal cafe, but an chiter dictum, referring to a preceeding determination for an argument a ƒortiori; nor by 2 Stra. 745, which was a fhort Niʃs Prius note. Befides, thefe reports give no reafon for their decifions, but Marius affigns a very fatisfactory one for his doctrine ; to wit, that it is beneficial to the indorfor that the
1788.
holder fhould receive as much as th emoney as he can from the drawer, fince thereby fo much is faved to him. There is a material difference, however, between the principles and ufage in London and Amʃterdam, and the cuftom of Philadelphia upon this, as well as the point of notice ; for long indulgence and the courfe of bufinefs, have not yet brought us to the precife and ftrict practice of thofe capitals.
2dly. With refpect of the ʃecond objection, they faid, at the Plaintiff's clerk went repeatedly in purfuit of the Defendant ; and proof of making enquiry after him is fufficient to excufe giving notice, unlefs he fhews that he might have been found. L.N.P. 273-274. But, at all events, they infifted that what was reafonable notice was a matter of fact, and not of law ; 1 Stra. 508. 2 Stra. 820. 1175. 1 Black Rep. 1. For, though it is true, that there are many facts upon which, if the Jury proceed contrary to the opinion of the Court, a rehearing will be granted ; yet they muft, at laft, be determined by a verdict : In Trover, for inftance, the Converʃion can only be found by a Jury, it cannot be found by the Court. That reafonable notice is a fact of the fame kind, was conceded by very eminent council,[♦] in oppofition to the intereft of his client. Doug 496.7. The property of the rule is abundantly more ftriking here than in England: and ad Jury alone can decide upon the cirucmftances of the country, and the relative fituation of the parties, it ought to be left to them to afcertain the reafonablenefs of the notice.
Ingerʃol in reply, faid, that the cafe was of great importance to the mercantile intereft; and that the mifchief would be fatally extenfive, if the adverfe arguments prevailed. He contended, however, that in whatever form the Plaintiff's choofe to proceed, they muft fail in their action. For, if they bring their fuit at common-law, then it cannot be maintained at all ; fince, at common-law, a choʃe in action is not affignable; nor is an affignor refponfible unlefs he exprefly warrants ; and, if they bring it upon the cuʃtom oƒ Merchants, then, in order to recover, they muft fhew that they have, on their part, complied with the cuftom, which required that reafonable notice of the non-payment, fhould have been given to the Defendant. But, as the common-law is not applicable, and the Act oƒ Aʃʃembly does not meddle with the cafe of Indorʃors and Indorʃees, the declaration muft undoubtedly be founded upon the ftatute of Anne and the cuftom of merchants ; and if the Plaintiffs are allowed to take advantage of thefe to maintain his action (waving the queftion whether the ftatute extends to this country) the Defendant cannot be precluded from taking advantage of them, likewife, to fupport his defence.Upon this ground the ufage muft be univeral : For, the ftatute of Anne places promiffory notes on the fame footing with inland bills of exchange, and inland bills of exchange, in the preceding reign of W. 3. had been placed on the fame footing, with foreign bills–fo that any diftinctions, between the cites of Amʃterdam and London, and
1788.
the city of Philadelphia, cannot be maintained ; the ufage is every where the fame ; and the conftruction of the ftatute will not be different, merely from a difference in the place.
It is fettled, by the common law, as well as under the ftatute, that he who gives a new credit is bound; this is not contradicted by the doctrine laid down in Marius ; and the cafe in Lord Raym, is corroborative. In Marius the money is prefumed to be received at the time the note becomes due, the proteft is made at the fame inftant, and notice of the difhonoring is given as foon as poffible−fo that there, undoubtedly, the indorfor is benefited by the indorfee's taking a part of the money, and runs no rifque for the ant of information refpecting the late of the bill, or note ; but in the prefent cafe, the money was received, at leaft, three months before any attempt to give notice, and in the meantime the drawer became infolvent. The Court argue in Wilʃon as from a fixed principle that the indeorfees receipt of a part from the drawer is a difcharge of the indorfee for the whole; and Strange, though a niʃe prius report is in point in all its circumftance.
He contended, that the cafe cited in Bull. L.N.P. was in favor of the Defendant on the ʃecond point; for he had fhewn that he might eafily have been found; and where the parties resfide in the fame town, not a moment fhould elapfe between the proteft and the notice. T. Rep. 107. The Supreme Court, in Strimmetz verʃus Currie[♦] faid, that in all univerfal queftions of a mercantile nature, the Term Reports were to be received as authority ; this was refolved, in oppofition to cafes for 100 years back, fhewing a different practice with refpect to notice ; and in Donaldʃon v. Cooper, the Judges refufed to hear the evidence of merchants as to ufage, becaufe the point had already been determined. As, therefore, it has been fettled, that reafonable notice is a queftion of law, and not of fact, the Plaintiff cannot now bring it into doubt and controverfy.
SHIPPEN, Preʃident, delivered the opinion of the Court to the following effect.
This is a motion for a nonfuit upon two grounds ; firʃt that the Plaintiff by an acceptance of part of the money from the drawer of the note in queftion, has difcharged the indorfor ; and ʃecondly, that he is alfo difcharged, becaufe due notice of the non-payment of the note was not given to him.−It is to be obferved, that with regard to difcharging the parties to bills of exchange, the law makes a material difference ; for, fome of them can only be difcharged by an exprefs, but others may be difcharged by an implied exoneration. Thus, the acceptor of the bill cannot be difcharged by any conftruction in law ; and though the holder proceeds againft the indorfor, and receives part of the money from him, this will not prevent his afterwards reforting to the acceptor for payment of the balance. Dougl. 235. In the inftance of a promiffory note the drawer ftands in the place of an acceptor. 2 Wils. 263. But an indorfor is only a fecurity that the acceptor of the bill, or the drawer of the note, fhall pay the money ; and, therefore, if the holder is guilty of any neglect in endeavouring to recover it, that will certainly be an implied difcharge of the indorfor. If, for inftance, the holder takes upon himfelf to give further time for payment, or, receives a part of the money, and gives time for the reft, the nature of the transfaction is effentially changed, and the indorfor is no longer refponfible. The fame principle applies to the ʃecond point; for, if the holder of a note, without giving notice to the indorfor of its being difhonored, retains it fo long in his hands, after the day of payment, as to creat a prefumption that he means to take upon himfelf to give a new credit to the drawer, the want of notice in this cafe, will likewife operate as a difcharge.
This, however, cannot be determined in the fame manner here, that it is in England. In that country, regular pofts are eftablifhed, the correfpondence between the great commercial towns punctually maintained ; and the communication, throughout the kingdom, is commodious, certain, and uninterrupted. Thefe circumftances, therefore, render it eafy to make a general rule ; − of which the cafe cited for the Defendant from Term Reports, exprefsly fpeaks. But in Pennʃylvania there are fome roads which the pofts never travels, and fome feafons in which the communication, between the different part of the State, it exceedingly difficult and precarious : How then can a general rule be made, fo as to afcertain every where, and at all times, the reafonable time of the notice? The attempt, if not totally impracticable, would, in its confequences, be dangerous and inconvenient.
But, with regard to the particular cafe before us, there can be no doubt, that the right of Indorfees to call upon the Indorfors, muft be founded upon the Cuʃtness oƒ Merchants: for, the indorfement, confidered at common law, amounts only to an affignment of all the property in the bill, or note, without making the affignor refponfible in the event of a non-payment. How far, however, promiffory notes are in this State upon the fame footing with bills of exchange, is a queftion ʃub judice in the Supreme Court; and, therefore, it would be going out of our duty to give a decifion upon it at this time. [♦] Yet, it muft be obferved, that the ftatute of Anne has, in fame refpects been extended to this country. For, the uniform practice has been to bring actions upon promiffory notes, as fuch; and not actions of Indebitutus aʃʃfumpʃit, which was the proper action, according to the opinion of HOLT, Chieƒ Juʃtice, before the paffing of the ftatute. The Legiflature, likewife, when regulating the affignment of bonds and notes, though they did not exprefsly put them on the fame footing with bills of exchange, muft, from the terms of the act, have taken it for granted, that an action might be brought upon a promiffory note, confidered as an inftrument. ‘Till, therefore, a contrary decifion is pronounced, we muft proceed as in the cafe of a bill of exchange, under the ftatute of Anne; and there it appears, that a very trifling negligence, on the part of the holder, will operate as a difcharge of the indorfor. This rule, we admit, is juft and proper, when he courfe of trade is regular, and the communication by poft is uniform and free. For, as it is ufual among merchants to lend their names to one another, all faith and credit would be at an end, if the holder of a note, inftead of attempting to procure the payment from the perfon who ought really to pay it, might, tacitly, keep it in his poffeffion,‘till the infolvency of the drawer, had deprived the indorfor of his only remedy. If, therefore, he retains it two or three months, or any other unreafonable period, he ought certainly to bear the lofs ; and, accordingly, the law deems this the giving of a new credit to the drawer, and difcharges the indorfor.
Upon the whole, the facts in the prefent cafe, are ftrong in favor of the Defendant ; but ftill we fhould be forry to take it from the determination of the Jury, upon a queftion refpecting the reafonablenefs of the notice : For, as it has been already faid, it is impoffible to eftablifh a general rule, alike applicable to all the parts of the State ; and until fuch a rule can be eftablifhed, every cafe upon its own circumftances muft be left to the Jury, as a queftion of fact, and not of law.
The Jury afterwards gave a verdict for the Defendant.