U.S. Supreme Court Wiseman v. Chiappella, 64 U.S. 23 How. 368 368 (1859)
Wiseman v. Chiappella
64 U.S. (23 How.) 368
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT OF LOUISIANA
Where the notarial protest of a bill of exchange stated that the bill had been handed to him on the day it was due, that he went several times to the office of the acceptors of it in order to demand payment for the same, and that at each time he found the doors closed, and "no person there to answer my demand," this was a sufficient demand.
It was not necessary to call individually upon one of the partners of the firm who had a residence in the city or to make any further inquiries for the acceptors than the repeated calls at their office.
Cases can be found, and many of them, in which further inquiries than a call at the place of business of a merchant acceptor have been deemed proper, but the rulings in such cases will be found to have been made on account of some peculiar facts in them which do not exist in this case.
In making a demand for an acceptance, the party ought, if possible, to see the drawee personally or some agent appointed by him to accept it, and diligent inquiry must be made for him if he shall not be found at his house or place of business. But a demand for payment need not be personal, and it will be sufficient if it shall be made at one or the other place in business hours.
The cases upon these points examined.
When, upon presentment for acceptance, the drawee does not happen to be found at his house or counting room, but is temporarily absent, and no one is authorized to give an answer, whether the bill will be accepted or not, in such case it would seem the holder is not bound to consider it as a refusal to accept, but he may wait a reasonable time for the return of the drawee.
He may present the bill on the next day, but this delay is not allowable in a presentment for payment. This must be made on the day the bill falls due, and if there be no one ready at the place to pay the bill, it should be treated as dishonored, and protested.
Presenting a bill under such circumstances at the place of business of the acceptor will be prima facie evidence that it had been done at a proper time of the day. If that shall be denied, it must be shown by evidence.
Where a suit was brought against a notary in Louisiana for negligence in making a protest, he will be protected from responsibility by showing that the protest was made in conformity with the practice and law of Louisiana, where the bill was payable.
This was an action brought by Wiseman against Chiappella, who was a notary public in New Orleans, upon the ground that he had been negligent in protesting a bill of exchange, and in consequence of such negligence Wiseman had lost the money. The question therefore was whether or not he had been guilty of negligence. The question of prescription was also decided by the circuit court, and argued here, but it will not be further noticed.
The facts of the case are stated in the opinion of the Court. The circuit court decided in favor of the defendant upon two grounds: 1st, that the protest was sufficient; 2d, that the action was prescribed.
MR. JUSTICE WAYNE delivered the opinion of the Court.
The plaintiff in this action alleges that he is the holder and owner of a certain bill of exchange for two thousand and forty-five dollars forty-five cents, dated at Vicksburg, in the State of Mississippi, May 13, 1855, and payable on the 23d November, 1855, which had been drawn by John A. Durden and A. Durden on William Langton & Co., of New Orleans, and accepted by them, payable to the order of Langton, Sears &
Co., and by that firm endorsed in blank. He further declares that the bill, when it became due, was entrusted to the defendant, Achille Chiappella, a commissioned notary public for the City of New Orleans, to demand payment of it from the acceptors and to protest the same for nonpayment, should the acceptors dishonor it, and that, from his carelessness in not making a legal demand of the acceptors and from not having expressed it in the protest, that the endorsers of the bill had been discharged from their obligation to pay it by a judgment of the Circuit Court of the United States for the Southern District of Mississippi. He further alleges that the acceptors, payees, and endorsers, were insolvent, and that, from the insufficiency of the demand for payment to bind the drawers of the bill, the defendant had become indebted to him for its amount, with interest at the rate of five percent from the day that it became due, the 23d November, 1855.
The defendant certifies in his notarial protest that the bill had been handed to him on the day it was due; that he went several times to the office of the acceptors of it in Gravier Street in order to demand payment for the same, and he found the doors closed, and "no person there to answer my demand." It also appeared that one of the firm by which the bill had been accepted had a residence in New Orleans, that no demand for payment had been made individually upon him, and that no further inquiry had been made for the acceptors than the repeated calls which the notary states he had made at their office.
We think, under the circumstances, that such repeated calls at the office of the acceptors was a sufficient demand, that further inquiry for them was not required by the custom of merchants, and that the protest, extended as it had been, is in conformity with what is now generally considered to be the established practice in such matters in England and the United States. We say under the circumstances, for as there is no fixed mode for making such a demand in all cases, each case as it occurs must be decided on its own facts.
We have not been able to find a case either in our own or in the English reports in which it has been expressly ruled
that a merchant, acceptor of a foreign bill of exchange, having a notorious place of business, has been permitted to close it up during the business hours of the day, thus avoiding the obligation of his acceptance on the day of its maturity, and then that he was allowed to claim that the bill ought to have been presented to him for payment elsewhere than at his place of business. Though such conduct is not "absconding," in the legal sense of that word, to avoid the payment of creditors, it must appear, when unexplained, to be an artifice inconsistent with the obligations of an acceptor, from which the law will presume that he does not intend to pay the bill on the day when it has become due.
The plaintiff in this case does not deny that the office of the acceptors was closed, as the notary states it to have been. The only fact upon which he relies to charge the defendant with neglect is that one of the firm of Langton, Sears & Co. resided in New Orleans, and that it was the duty of the notary to have made inquiry for him at his residence. No presumption, under such circumstances, can be made that the acceptors had removed to another place of business or that they were not intentionally absent from it on the day that they knew the bill was payable. This case, then, must be determined on the fact of the designed absence of the acceptors on that day, and that inference is strengthened by no one having been left there to represent them.
All merchants register their acceptances in a bill book. It cannot be presumed that they will be unmindful of the days when they are matured. Should their counting rooms be closed on such days, the law will presume that it has been done intentionally to avoid payment, and on that account that further inquiries need not be made for them before a protest can be made for nonpayment.
Cases can be found, and many of them, in which further inquiries than a call at the place of business of a merchant acceptor has been deemed proper, and in which such inquiries' not having been made has been declared to be a want of due diligence in making a demand for payment; but the rulings in such cases will be found to have been made on account of
some peculiar facts in them which do not exist in this case. And in the same class of cases it has been ruled that the protest should contain a declaration by the notary that his call to present a bill for payment had been made in the business hours of the day; but in no case has the latter ever been presumed in favor of an acceptor whose place of business has been so closed that a demand for payment could not be made there upon himself or upon someone left there to attend to his business.
Lord Ellenborough said, in the case of Cross v. Smith, 1 M. & S. 545:
"The counting house is a place where all appointments respecting business and all notices should be addressed, and it is the duty of the merchant to take care that proper persons shall be in attendance."
It was also ruled in that case, that a verbal message, imparting the dishonor of a bill, sent to the counting house of the drawer during the hours of business, on two successive days, the messenger knocking there, and making a noise sufficient to be heard within, and no one coming, was sufficient notice.
In this case, the facts were, that Fea & Co. had a counting house at Hull, where they were merchants, and one lived within one mile and the other within ten miles of Hull. The Monday after Smith & Co. received the bill, their clerk went to give notice, and called at the counting house of Fea & Co. about half after ten o'clock. He found the outer door open, the inner one locked. He knocked so that he must have been heard, had anyone been there, waited two or three minutes, and went away, and on his return from the counting room he saw Fea & Co.'s attorney, and told him. The next Monday, he went again at the same hour, but with no better success. No written notice was left, nor was any notice sent to the residence of either of the parties. The court took time to consider, and then held, without any reference to the clerk having called at the counting house two successive days, that going to the counting house at a time it should have been open was sufficient, and that it was not necessary to leave a written notice, or to send to the residence of either of the parties.
In Bancroft and Hall, Holt 476, the plaintiff received notice
of the bill's dishonor at Manchester, 24 May. The same day he sent a letter by a private hand to his agent at Liverpool, to give defendant notice. The agent called at the defendant's counting house about six or seven P.M., but the counting house was shut up, and the defendant did not receive notice of the dishonor of the bill until the morning of the 27 -- Monday. Two points were ruled: 1st, that sending by a private hand to an agent to give notice was sufficient; 2d, that it was sufficient for the agent to take the ordinary mode to give notice -- the ordinary time of shutting up was eight or nine. Where the endorser of a note shut up his house in town soon after the note was made and before it became due, and retired to his house in the country, intending, however, only a temporary residence in the country, it was held that a notice left at his house by having been put into the key-hole was sufficient to charge him. Stewart v. Eden, 2 Can. 121.
This Court held, in Williams v. Bank of United States, 2 Pet. 96, that sufficient diligence had been shown on the part of the holder of a note to charge the endorser, under the following circumstances: a notary public employed for the purpose called at the house of the endorser of a note, to give him notice of its dishonor, and finding the house shut and locked, ascertained from the nearest resident that the endorser and his family had left town on a visit. He made no further inquiry where the endorser had gone, or how long he was expected to be absent, and made no attempt to ascertain whether he had left any person in town to attend to his business, but he left a notice of the dishonor of the note at an adjoining house, requesting the occupant to give it to the endorser upon his return.
In making a demand for an acceptance, the party ought, if possible, to see the drawee personally, or some agent appointed by him to accept, and diligent inquiry must be made for him, if he shall not be found at his house or place of business; but a demand for payment need not be personal, and it will be sufficient if it shall be made at one or the other place, in business hours. Chitty 274, 367.
It was formerly the practice, if the house of the acceptor was shut up when the holder called there to present the bill for payment and no person was there to represent him, and it appeared that he had removed, that the holder was bound to make efforts to find out to what place he had removed and there make a payment. Such, however, is no longer the practice either in England or in the United States, nor has it been in the United States for many years. It is now sufficient if the bill shall be taken to the residence of the acceptors, as that may be stated in the bill, for the purpose of demanding payment and to show that the house was shut up and that no one was there. Hine v. Alleby, 4 B. & Adol. 624. It has been decided by the Supreme Court in Tennessee that the protest of a foreign bill of exchange, drawn upon a firm in New Orleans, with no place of payment designated, where it appeared that the deputy of a regularly commissioned notary had called several times at the office of the acceptors to make demand of payment, but found no one there of whom the demand could be made, was sufficient to excuse a demand, and to fix the liability of the endorsers to whom notice had been given. Union Bank v. Jeptha Fowlkes 555. The supreme court of Louisiana, in Watson v. Templeton, 11 Ann. 137, declares
"that a demand made within the usual hours of business, at the commercial domicil of a partnership, for the payment of a note or bill due by the firm, is a sufficient presentment; that it was not necessary to make a further demand at the private residences of individual persons. The place of business is the domicil of the firm, and it is their duty to have suitable persons there to receive and answer all demands of business made at that place."
Going with a promissory note, to demand payment, to the place of business of the notary, in business hours, and finding it shut, is using due diligence. 1 Pick., Shed v. Brett, 413.
In the case of the B. B. at Decatur v. Hodges, the Supreme Court of Alabama say:
"The court below excluded the protest for nonpayment, because the presentment is stated thereon to have been made of the bookkeeper of the drawees in their counting room, they being absent. This was erroneous.
The bill was presented at the place of business of the firm, at their counting room. If they had intended to pay the bill, it was their duty to have been present on the day of payment, or to have left means for making such payment in charge of someone authorized to make it. The notary finding them absent from their place of business, and their bookkeeper there, might well make protest of the dishonor of the bill for nonpayment upon presentment to and refusal by him."
When, upon presentment for acceptance, the drawee does not happen to be found at his house or counting room, but is temporarily absent, and no one is authorized to give an answer whether the bill will be accepted or not, in such case it would seem the holder is not bound to consider it as a refusal to accept, but he may wait a reasonable time for the return of the drawee. He may present the bill on the next day, but this delay is not allowable in a presentment for payment. This must be made on the day the bill falls due; and if there be no one ready at the place to pay the bill, it should be treated as dishonored, and protested. Story on Bills, sec. 250; Chitty on Bills, 9 Ed. 400. The supreme court of New York has ruled that where a notary's entry case states that presentment and demand were made at the maturity of a bill, at the office of C. & S., the acceptors, this language imports that the office was their place of business, and it will be presumed in favor of the notary, that the time in the day was proper. Burbank v. Beach, 15 Barb. 326.
The preceding citation is in conformity with what the supreme court of New York had ruled thirteen years before in the case of the Cayuga Bank v. Hart, 2 Hill 635. Its language is that where a notarial certificate of a protest of a bill of exchange stated a presentment for payment at the office of an acceptor, on the proper day, and that the office was closed, but was silent as to the hour of the day of doing the act, that it was sufficient, and that regularity in that particular should be presumed.
We infer from all the cases in our books, notwithstanding many of them are contradictory to subsequent decisions, that the practice now, both in England and the United States, does
not require more to be done, in the presentment of a bill of exchange to an acceptor for payment, than that the demand should be made of a merchant acceptor at his counting room or place of business, and if that be closed, so in fact that a demand cannot be made, or that the acceptor is not to be found at his place of business, and has left no one there to pay it, that further inquiry for him is not necessary, and will be considered as due diligence, and that presenting a bill under such circumstances at the place of business of the acceptor will be prima facie evidence that it had been done at a proper time of the day. If that shall be denied, it must be shown by evidence.
But whatever may have been the differences between cases upon this subject both in England and the United States, there has always been a requirement in both countries, and everywhere acknowledged in the United States, which protects the defendant in this suit from any responsibility to the plaintiff. The requirement is this: that the protest was made in this case in conformity with the practice and law of Louisiana, where the bill was payable. Rothschild v. Caine, 1 Adol. & Ell. 43; 11 Smedes & Marshall 182.
We are aware of the contrariety of opinion which prevailed for many years in regard to what should be considered due diligence in making a presentment of a bill of exchange for payment to an acceptor of it, under such circumstances as are certified to by the notary in this case. We have carefully examined most of them, from the case of Cotton v. Butler, in Strange 1086, to the year 1856, and we have adopted those of later years as our best guide, and as having a better foundation in reason for the practice and the commercial law of the present day, and because we think it has mostly prevailed in the United States for thirty years.
As the view which we have taken of this case disposes of it in favor of the defendant, we shall not notice another point made in the argument in his behalf, which was that the plaintiff's right of action, if he ever had one against the defendant, was excluded by the Louisiana law of prescription.
We direct the affirmance of the judgment of the circuit court.