UNITED STATES SUPREME COURT DECISIONS ON-LINE

Action against the endorser on a promissory note.

The notary public, after the note became due, called at the house of the endorser who resided in the City of Cincinnati, which he found shut up and the door locked, and on inquiry of the nearest resident, he was informed that the endorser and family had left town on a visit, whether for a day, week, or month he did not know, nor did he inquire. He made use of no further diligence to ascertain where the endorser had gone or whether he had left any person in

town to attend to his business. He left a notice at the house of a person adjoining, with a request to hand it to the endorser when he should return. Held that this was sufficient diligence on the part of the holders of the note to charge the endorser.

The general rule of law applicable to this subject has long been settled; that to enable the holder of a bill of exchange or promissory note to charge the endorser, it is incumbent on him to prove that timely notice of the dishonor of the bill or of the nonpayment of the note was given to the endorser, or if this could not be done, he must excuse the omission by showing that due diligence had been used to give such notice.

If the parties reside is the same city or town, the endorser must be personally notified of the dishonor of the bill or note, either verbally or in writing, or a written notice must be left at his dwelling house or place of business. Either mode is sufficient, but one or other must be observed unless it is prevented by the act of the party entitled to the notice.

If a party to a contract who is entitled to the benefit of a condition upon the performance of which his responsibility is to arise dispenses with it or, by any act of his own, prevents the performance; the opposite party is excused from proving a strict compliance with the conditions. Thus, if the precedent act is to be performed at a certain time or place, and a strict performance of it is prevented by the absence of the party who has a right to claim it; the law will not permit him to set up the nonperformance of the condition as a bar to the responsibility which his part of the contract had imposed upon him.

The holder of a bill or promissory note, in order to entitle himself to call upon the drawer or endorser, must give notice of its dishonor to the party whom he means to charge. But if, when the notice should be given, the party entitled to it should be absent from the state, and has left no known agent to receive it, if he abscond, or has no place of residence which reasonable diligence used by the holder can enable him to discover, the law dispenses with the necessity of giving regular notice.

Where the parties reside in the same city or town, the notice should be given at the dwelling house or place of business, and the duty of the holder does not require him to give the notice at any other place.

The court refused to hear a reargument upon a point decided in the case of Fullerton v. Bank of the United States, 1 Pet. 612, that the act of the Legislature of Ohio relative to proceedings against parties to promissory notes had been well adopted as a rule of practice in the courts of the United States for the State of Ohio. clubjuris

Page 27 U. S. 97

This was a writ of error to the Circuit Court of Ohio, in which court the Bank of the United States has instituted a joint action under the authority of the Act of Assembly of the State of Ohio passed 18 February, 1820, entitled "An act to regulate judicial proceedings where banks and bankers are parties," &c., and by the provisions of which, the plaintiff may make the drawer and endorsers of a note or bill of exchange, joint defendants in the same action. Thus, the suit was against the defendant and two others, and the declaration contained a common count for money lent against all the defendants.

The pleas were nonassumpsit, and on the trial of the cause, two several promissory notes drawn by J. Embree, endorsed by D. Embree and Williams the defendant, in blank, were offered in evidence by the bank. On the subject of notice, the bank then gave the following parol evidence, which was the only proof offered, to-wit:

"That the notary public, after the protest of the note and the expiration of the usual days of grace, called at the house of the defendant [Williams], who lived in the City of Cincinnati. He found it shut up and the door locked, and on inquiry of the nearest resident, he was informed that the defendant and family had left town on a visit, whether for a day, or week, or month, he did not know, nor did he inquire. He made use of no further diligence to ascertain where said Williams had gone or whether he had left any person in town to attend to his business. The witness left a notice at the house of a person adjoining, with a request to hand it to the defendant, when he should return."

The counsel for Williams submitted to the court whether the above facts were sufficient evidence of legal notice to charge the endorser and to entitle the plaintiff to judgment. The court decided that the evidence offered was conclusive against the endorser, to which decision a bill of exceptions was tendered and sealed, and judgment was then rendered for the bank, against Williams for $12,202.88. clubjuris

Page 27 U. S. 100