Windham Bank v. Norton, Converse & Co. , 22 Conn. 213 ( 1852 )

Storrs, J.

The defendants first insist, that the averments in this declaration, of a due presentment of the draft in question and notice of its non-payment, must be strictly proved, and that they are not sustained, by proof of the facts set up by the plaintiffs, by way of excuse. Whatever may be the course of authorities elsewhere, it is well settled here, that those allegations are supported by evidence of matter of excuse, or a waiver of demand and notice. Norton v. Lewis, 2 Conn. R., 479, and Camp v. Bates, 11 id., 487, are decisive on this point.

The other and more important question in this case is, whether the plaintiffs are excused for the non-presentment of this draft for payment, on the day when it became due. The last day of grace Being Sunday, it was payable on the preceding Saturday, which was the second day of June, 1849. This question depends on whether the plaintiffs are chargeable with negligence, in not presenting it on that day.

If the agent of the plaintiffs, to whom they sent it, to be forwarded for presentment and collection, and who transacted this business for them, was guilty of such negligence, it is, of course, imputable to the plaintiffs. And it is not important to this question, either that the defendants in fact sustained no damage, by the draft not having been presented for payment, when it fell due, or that it would not have been paid by the acceptor, if it had then been presented. The indorser, on a question of due presentment for payment, is not affected by either of these circumstances. Nor indeed do the plaintiffs claim to recover, on either of these grounds.

The question of negligence here presented depends on the inquiry, whether, under the circumstances of this case, the delay of the plaintiffs’ agent, in not forwarding this draft to Philadelphia, until the last' mail left New York for that place, on the day next preceding that on which the draft fell due, constituted a want- of reasonable or due diligence, in regard to its presentment. We say, under the circumstances, because there is. no positive or absolute rulé of law, which determines within what precise time the holder of a bill of exchange must, in all cases whatever, or at all events, avail himself of the authorized mode of transmission adopted in this instance, to forward such paper for presentment. The general principle, established by all the adjudged cases, as well as the approved elementary writers, is, that reasonable diligence in the presentment of a bill for payment, is required of the holder, and that, therefore, if there has been no want of such diligence, he is excused. Story on Bills, ch. 10. Chitty on Bills, ch. 9, 10. Story on Prom. Notes, ch. 7, § 368. Patience v. Townley, 2 Smith’s R., 223, 224.

In applying this principle, the general rule is, that it must be presented for payment, on the very day on which, by law, it becomes due, and that, unless the presentment be so made, it is a fatal objection to any right’ of recovery against the indorser. But, although this is the general rule, it is not an universal one, and prevails only under the qualification, which is really a part of the rule itself, that there is no negligence or want of reasonable diligence, in not making such presentment. The whole rule, therefore, more properly stated, is, that the presentment must be on the day on which the bill becomes due, unless it is not in the power of the holder, by the use of reasonable diligence, so to present it. By the very statement of this rule, as thus fully expressed, it is plain that, on the question, whether the holder is excused on this ground, for not thus presenting it, or, in other words, whether there was negligence on his part, or a want of reasonable diligence, no absolute or positive rule can, from the nature of the case, be laid down, which shall apply under all circumstances. We have no evidence of any general custom of 'merchants, in regard to the precise time, within which mercantile paper , is usually forwarded, in order to be presented for payment, so that the law merchant furnishes us no guide on this point. And it is clear, that the strict rule of the common law, by which an inability to perform the terms or condition of a contract, by reason of inevitable accident or casualty, constitutes generally no excuse for their non-performance, is not applicable to mercantile instruments of this description. Therefore, the excuse for non-presentment in this case, presents the ordinary question of negligence. That question may, and often does, depend on such a variety of circumstances, or those of such a peculiar character, that it is very difficult, if not impossible, to reduce them to. any fixed or invariable rule. But, in regard to such a question, as applicable to the non-presentment of a bill or note, when it is due, it js considered a well settled rule, that such want of presentment is excused, by any inevitable or unavoidable accident not attributable to the fault of the holder, provided there is a presentment by him, as soon afterward as he is able; by which is intended that class of accidents, casualties or circumstances which render it morally or physically impossible to make such presentment. Judge Story, in speaking of this ground of excuse, says : “ It has been truly observed, by a learned author,” referring to Mr. Chitty, that there is no positive authority in our law, which establishes any such inevitable accident to be a' sufficient excuse for the want of a due presentment. But it seems justly and naturally to flow from the general principle, which regulates all matters of presentment and notice, in cases of negotiable paper. The object, in all such cases, is, to require reasonable diligence on the part of the holder; and that diligence must be measured by the general convenience of the commercial world,’and the practicability of accomplishing the end required, by ordinary skill, caution and effort.” And he cites the remark of Lord Ellenborough in Patience v. Townley, (2 Smith’s R., 223, 224,) that due presentment must be interpreted to mean, presented according'to the custom of merchants, which necessarily implies an exception, in favor of those unavoidable accidents, which must prevent the party from doing it within regular time. (Story on Bills, § 258.)

Applying these principles to this case, we are of opinion that the plaintiffs are not chargeable with a want of reasonable diligence.

No fault or impropriety is imputable to them, by reason of their having selected the public mail,’ as the mode of forwarding the draft in question, to the bank in Philadelphia, where it was payable; It is properly conceded by the defendants, that such mode of transmission was in accordance with the general commercial usage and law, in the case of paper of this description. Indeed, it is recommended in the books, as the most proper mode of transmission, as being the least hazardous, and therefore preferable to a special or private conveyance. But,' although the public mail was a legal and proper mode by which to forward this paper, it was their duty to use it in'such á manner, that they should not be chargeable with negligence, or unreasonable delay. If, therefore, they put the draft into the post-office, at so late a period that, by the ordinary course of the mail, it could not, or there was reasonable ground to believe that it would not, reach the place of its destination, in season for its presentment, when due, we have no doubt that there would be, on their part, a want of reasonable diligence, which would exonerate the indorser. On the other hand, to throw the risk of every possible accident, in that mode of forwarding the draft, upon the holder, where there has been no such delay, would' clearly be most inconvenient, unreasonable and unjust, as well as contrary to the expectation and understanding of the indorser, who is presumed to be aware of the general usage and law, in regard to the transmission, by mail, of this kind of paper, and must therefore be supposed to require only reasonable diligence in this respect, on the part of the holder; and would,'indeed, be inconsistent with the rule itself, which sanctions its transmission in that manner. It has been suggested, that the principle should be adopted, that when the holder resorts to the public mail, .he should be required to forward the presentment, at so early' a period, that if by any accident it should not reach the place of its presentment, in the regular course of the mail, there should be time to recall it, and have it presented when and where it falls due; or that, at least, it should be forwarded in season to ascertain, whether it reached there by that time, and to make such a demand or presentment for payment, as is required in the case of lost bills. We find no authority whatever for any such rule, nor would it, in our opinion, comport with the principle now well established, requiring only reasonable diligence, on the part of the holder, or with the policy which prevails in regard to such commercial* instruments. It would, in the first place, be the means of restraining the transfer of such paperwithin such a limited time as to impair, if not to destroy, its usefulness and value, arising out of its negotiable quality ; and, in the next placé, it would, in many cases, be wholly impracticable. The casualties, incident to this mode of transmission, are most various in their character, and ¿an not, of course, be foreseen; and they might, in the case of forwarding mercantile paper, be such as to render it impossible to ascertain its miscarriage, or to recall it, in season to remedy the difficulty. In the case of the draft now before us, for example, if it had been placed, by the plaintiffs, in the post-office at Windham, where they were located, and transacted their business, for transmission, direct from thence to Philadelphia, on the very day when they became the holders of it, which was between three and four months before it became due, and, by an accident or mistake of the postmaster in the former place, similar to that which occurred in this case, at New York, it had been mailed to one of the most distant parts of our country,’or to a foreign country, (which would not have been more singular, than that it should have been mistakenly mailed, as in the present case, for Washington,) it might not have been practicable for the plaintiffs to learn the accident, or obviate its effect, before the paper fell due. In short, such a rule as that suggested, would be merely artificial in its character, productive of great inconvenience and injustice in particular cases, without any corresponding general benefits, and change the whole course of business, in regard to a most extensive and important class of mercantile transactions. Nor has any other arbitrary or positive rule been suggested, which is not equally obnoxious to the same or similar objections.

The only remaining enquiry is, whether the plaintiffs are chargeable with negligence, for not forwarding the draft in question, by an earlier mail from New York to Philadelphia. It was sent by the usual, legal, and proper mode. It was deposited in the post-office, in season to reach the place where it was payable, before it fell due, by the regular course of the next mail; and there was no reason to believe, that it would not be there duly delivered. It was actually sent by that mail, and, but for the mistake of {he postmaster where it was mailed, in misdirecting the package containing it, would have reached its proper destination, and been received there in season for its presentment, when due. It in fact reached that place, when it should have done; but was carried beyond it, in consequence of that mistake. As that mistake could not be foreseen or apprehended by the plaintiffs, it is not reasonable to require them to take any steps to guard against it. Indeed, they could not have done so, as they had no control or supervision over the postmaster. They had a right to presume, that the latter had done his duty. They could not know, that he had misdirected the package, until it was too late to remedy the consequences. The occurrence of the draft being sent beyond its place of destination, was, therefore, so far as the plaintiffs were concerned, an unavoidable accident. It happened, not in consequence of any delay of the plaintiffs, in putting the draft into the post-office, at so late a period that it could not, or probably would not, reach its destination in due season, but merely in consequence of the act of the official to whom it was properly confided, done after it was properly in his charge, by the plaintiffs, for transmission. The accident, moreover, was of a very peculiar and extraordinary character, and quite different from those which are ordinarily incident to that mode of transmission, and against which it would be extremely difficult, if not- impossible, to guard. It would have been equally- liable to occur, at any time, when the draft should have been placed in the post-office. It was not owing, in any sense, to the fault of the plaintiffs, but solely to. that of the postmaster. Under these circumstances, we do not feel authorized to impute any blame or negligence to the plaintiffs. We are, therefore, of opinion, that judgment should be rendered for the plaintiffs.

In this opinion the other judges concurred.

Judgment for the plaintiffs.