Commercial Bank of Manchester v. Lewis et al.

12 S. & M. 465, we do not hesitate to say, that this paper was received by the bank in the usual course of trade for value.

It is proper to look at the case in another aspect. The goods had been purchased by James W. Cusack of Cusack & Dabbs, and were by him sold to Wilkinson. The note was made payable, as he says, to Cusack & Dabbs at his request, that he might have their indorsement upon it, and apply it to the payment of their debts for which he was bound. It is alleged that the sale of the goods to James W. Cusack was fraudulent. If this were so, Cusack & Dabbs, as the parties to the fraud, could not be relieved against it, and by the agreement with them in regard to the Wilkinson notes, which Lewis sets up, he can only stand in their place. He is not asserting a right as a creditor of Cusack & Dabbs against James W. Cusack paramount to his, but is claiming to hold under them a benefit growing out of the fraudulent transaction. He is willing to stand by the sale up to a certain point and claim a benefit derived from it, and then reject it and claim against it. This cannot be done. He must either seek to set aside the sale entirely, or ratify it entirely. In either event, he could not succeed in this case, as it now stands. If the sale were set aside, Wilkinson would not be bound by the notes; if ratified, then the legal title was in James W. Cusack, and his transfer to the bank under the circumstances gave priority to it. Dabbs had no title to the note after the indorsement; the purchase of his interest at the bankrupt sale, therefore, conferred no right.

In conclusion, we are not prepared to say that the circumstances set forth in the bill conferred upon Lewis any equity, as against James W. Cusack. But that point was not argued, and we only advert to it, to show that the case is not to be regarded as having recognized or given sanction to such equity.

The decree of the chancellor is reversed, and the cross-bill dismissed. This disposes as well of the appeal by the bank as of the cross-appeal by Lewis. The costs in this court and in the court below to be paid by Lewis.

Goodloe v. Godley et al.

DAVID S. Goodloe vs. Jesse Godley eT AL.

The principle established in 6 S. & M. 255, that "if the holder of a note be ignorant of the place where the indorser resided at the time of protest, and cannot ascertain it after diligent inquiry, notice, sent to the place where the note bears date, will be sufficient," affirmed.

Banks of necessity carry on their business through the medium of agents, who bind the bank to the extent of their authority; where, therefore, a bank has several agents, to whom separate and distinct duties are intrusted, notice to one of them in regard to a matter not pertaining to his duties cannot affect the bank.

Knowledge, therefore, on the part of a clerk in a bank, of the residence of a party to negotiable paper protested by the bank, will not prevent the holder of the paper, in a suit against this party to it, from availing himself of the ignorance of the proper officer of the bank of the residence of the party. The holder of negotiable paper, on failure of the proper party to pay it, need not, in order to ascertain the residence of the other parties to the paper, for the purpose of giving them notice, make inquiry at any other point than where the paper is payable; inquiries at that point will constitute due diligence.

Where the declaration upon a protested bill of exchange alleges demand and notice, proof of any matter in excuse of notice is admissible and sufficient. It is proof of sufficient demand of payment of a note payable at a bank, that the notary, after banking hours, and after the note had been handed to him as notary, made the demand, and was answered by the proper officer that no money had been deposited for its payment.

Where a note is payable at a particular time at a bank, and indorsed to such bank for collection, no specific demand is necessary. It is enough if the note be in bank on the day appointed for its payment.

IN error from the circuit court of Madison county; Hon. Robert C. Perry, judge.

Jesse Godley & Co. sued David S. Good loe, Jr. on a note made by Keenan & Goodloe for $622.66 to David S. Goodloe, jr., or order, payable ninety days after date, at the Branch of the Bank of the State of Alabama, and dated Tuscumbia, Aug.

Goodloe v. Godley et al.

15, 1848; indorsed, "Pay Jesse Godley & Co., or order. David S. Goodloe, Jr."

The declaration is in the usual form, alleging the presentation of the note at the bank, demand of payment, non-payment, and notice. The plea was non-assumpsit.

On the trial, the plaintiff read the note sued on, and the indorsement; the deposition of Jonathan Lane, who deposed that "on the sixteenth day of November, 1838, a note drawn by Keenan & Goodloe for $632.66, indorsed by D. S. Goodloe, Jr. and Jesse Godley, was handed him as notary public; that he protested it on that day, and after diligent inquiry for the makers and indorsers, having no positive information of the particular post-office of D. S. Goodloe, and from the fact that the note was dated at Tuscumbia, he was induced to direct the notice of the makers and first indorsers, Tuscumbia, Alabama, and to Jesse Godley, Philadelphia, Pa. All the notices were deposited in the post-office at Decatur on the day of protest, or in time for the first mail. The original note was presented by him at the counter of the Branch of the Bank of the State of Alabama at Decatur, for payment, after business hours of said bank had closed; and on presentation of said original note to the proper officer of said bank, on the 16th day of November, 1838, witness was informed by him, the proper officer, that no money had been deposited for that purpose, and therefore refused to pay it."

Plaintiff read a second deposition of the same witness, in which he deposes that "on the 14th day of November, 1838, a promissory note drawn by Keenan & Goodloe for $622.66, indorsed by D. S. Goodloe & Co., was handed me by the proper officer of the Branch of the Bank of the State of Alabama at Decatur, as notary public. I protested the said note, as bound by law. On the day and year above mentioned the notice was sent to Keenan & Goodloe, Tuscumbia, Ala., the makers; D. S. Goodloe, indorser, Tuscumbia, Ala.; Jesse Godley & Co., Philadelphia, Pa. My reason for sending the notices as above stated, was from the information received from the cashier, and other officers of the bank, who are always required to state

Goodloe v. Godley et al.

where the notice should be sent. They were deposited in the post-office at Decatur in time to go by the first mail. I have no recollection of any other fact in relation to the above protest. I made inquiry of the cashier and other officers of the bank, and received the information before stated at the time I made the demand, and the payment was refused; and I presume that they, the officers of the bank, knew the proper post-office to direct to D. S. Goodloe, Jr., as they were the holders of the notes. Knows William Gregg; he was a clerk in the bank, and has no doubt if he was there, inquiry was made of him, as he generally gave directions as to notices while he remained there; does not know whether the officers of the bank made any inquiry in relation to the residence of the defendant or not; but the officers of the bank, the then holders, directed me to send the notices as before stated. Was acquainted with D. S. Goodloe, Sen., and other members of the family. D. S. Goodloe, Sen., lived at Tuscumbia."

It is not deemed necessary to set out the residue of the proof at length.

On the part of the indorser, Goodloe, it is proved that his place of residence and nearest post-office was not Tuscumbia, but La Grange, about ten miles from Tuscumbia; and several depositions were read to show that by inquiries at Tuscumbia, and of the makers of the note, and others, the notary might have learned that La Grange, and not Tuscumbia, was the proper post-office of Goodloe.

The notary is proved to be a man of veracity and fidelity in the discharge of his official duties.

At the instance of the plaintiffs below, the court gave the following instruction to the jury:

"If the jury believe, from the evidence, that the notary was ignorant of the place of residence of the indorser, and could not ascertain it after diligent inquiry, and that he sent notice to the place where the note bore date, this is sufficient to bind the indorser." To which the defendant excepted.

And at the instance of the defendant, as follows:

"1. That in order to charge the defendant as indorser, it is

Goodloe v. Godley et al.

incumbent on the plaintiff to prove that timely notice was given to the defendant of the non-payment of the note, if it could be done; or, if this could not be done, the plaintiff must show that the holder has used due diligence to give such notice.

"2. To constitute due diligence in this case, it must appear from the evidence that the holder made inquiries of those persons of his acquaintance who were most likely to know the residence of the defendant, or where he was likely to be found, if such inquiries were practicable, and that as soon as the holder obtained the requisite information from such sources, he communicated the notice of non-payment to the defendant.

"3. The opinion of the witness, as to what constituted diligent inquiry, is not evidence, but it is incumbent on the witness to state all the facts connected with such inquiry, from which the court and jury may determine whether such facts constitute a diligent inquiry or not.

"6. It is incompetent for either party to discredit the statements of his own witness."

The following instructions, asked by defendant, were refused by the court:

"4. The bank where the note was payable, and to which the note was sent for collection, was the holder of the note for that purpose, and the plaintiff's cannot avail themselves of ignorance of the defendant's residence, as an excuse for the omission of actual notice, if it appears that the bank, through any of its officers, had knowledge of such residence.

"5. If the declaration in this case avers that notice was given to the indorser, proof that diligent search was made for his residence, to excuse the omission of notice, will not support the averment; and unless the proof corresponds with the averment in this particular, the jury must find for the defendant.

"8. It is not sufficient to charge the indorser in this case, that inquiries were made only where the note was payable."

The jury found a verdict for the plaintiffs, and the defendant moved to set it aside, and for a new trial, on the following grounds:

"1. Because the verdict is contrary to the law and evidence of the case.