Siegel v. Hirsch , 26 Pa. Super. 398 ( 1904 )

Opinion by

Rice, P. J.,

This was an action of assumpsit against the indorser of a negotiable promissory note. It was begun before a justice of the peace and brought into the common pleas by appeal. The rules of that court provide, “ In all.cases of appeals from justices of the peace, the transcript when duly filed shall be considered the declaration of the plaintiff, unless the defendant or his attorney shall before plea pleaded, enter rule upon the plaintiff to file a special narr or statement.” Without being ruled to do so, the plaintiff voluntarily filed a statement to which was attached a copy of the note and the indorsements. The defendant having.pleaded the general issue, the cause was referred to and tried before a referee under the Act of April 6, 1869, P. L. 725, and its supplements. At the conclusion of the plaintiff’s evidence, the defendant moved for a compulsory nonsuit upon the ground, amongst others, that the proof did not correspond with the statement. The referee properly overruled this objection. The proof was fuller than the statement, but there was no variance between them. True, there were defects in the statement which might have been assigned as ground of demurrer, and would have prevented summary judgment for want of a sufficient affidavit of defense. Attention was called to these by the points submitted by the defendant. But as the statement was sufficient to give the defendant information as to the nature of the claim and enable him to plead a judgment on it in bar of another action, and as under the rules of court the case might have been tried without a statement, we cannot say that the referee erred in holding that these defects were waived by pleading the general issue, agreeing to a reference and going to trial on the merits. If there had been a variance, a different question would be presented.

The principal question in the case is as to the sufficiency of notice of dishonor. According to the certificate of the notary, he deposited the notice for the defendant in the post office in the city of New York, postage prepaid, “directed to 24 E. Market Street, Wilkes-Barre, Pa.” When the note was offered in evidence there appeared opposite or under the name of defendant in pencil the words and figures, “ 24 E. Market Street, Wilkes-Barre, Pa.,” but in the copy of the note attached to the statement of claim, these words and figures do not appear; and it was neither found by the referee nor averred in the statement of claim nor proved on the trial that they were added to his signature by the indorser. As shown by the plaintiffs’ first point, they did not claim that the notice was sent to an address added by the defendant to his signature, but only that it was “ addressed to him at the post office nearest his place of residence.” The referee reported that the testimony of the defendant tended to establish inter alia the following facts: that defendant never received the notice; that his places of business were at Nos. 22 and 28 E. Market Street, Wilkes-Barre, Pa.; and that there was another S. Hirsch residing and doing business in Wilkes-Barre, Pa., to whom defendant’s letters were frequently delivered by mistake. He held, however, that these facts were immaterial and irrelevant, and therefore excluded them from consideration in determining the main question. This was put on the ground that where notice of dishonor is sent in accordance with the provisions of the Bills and Notes Act of May 16, 1901, P. L. 194, the fact that it was not received constitutes no defense.

Section 105 reads as follows : “Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.” Was the notice “duly addressed?” Upon that subject section 108 provides as follows : “ Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address then the notice of dishonor must be sent as follows :

“ ‘ 1. Either to the post office nearest to his place of residence or to the post office where he is accustomed to receive his letters,’ ” etc.

This latter clause must be read in connection with section 105. It may be conceded that the notice would have been sufficient if it had been addressed to the defendant at Wilkes-Barre without more. It would seem that the holder is not bound to ascertain the street and number where the indorser’s place of business or residence is located. If the latter desires the notice to be delivered by the carrier at that place the statute provides a mode whereby he may secure that to be done. If he does not avail himself o£ that right, the holder is warranted in inferring that notice mailed to the post office nearest his residence or the post office where he is accustomed to receive his letters will be sufficient. But on the other hand, it is incumbent on him not to add anything to the direction which may lead the carrier to deliver the envelope containing the notice to a wrong address. The statute does not relieve the holder from the responsibility for miscarriage in the mails brought about in that way. Where the notice is mailed to a city in which there is a carrier delivery, and a wrong street number is added to the address, the natural presumption that it will be received by the indorser is very much weakened if not absolutely overcome. At all events, if in addition to the fact that the envelope containing the notice was not “ duly addressed,” it is established by competent testimony that it was not received, it cannot be declared as matter of law that the plaintiff is entitled to judgment. So much for the general rule.

But the defendant was a prominent business man. One of his places of business adjoined and the other was opposite No. 24 E. Market street, and it was not alleged that there was another person of the same name residing or doing business on that street. “ If the notice, though left at or sent to an improper place, was nevertheless in point of fact received in due time by the party to be charged, and this is proved, or could from the evidence in the case be properly presumed by the jury, it is sufficient in point of law to charge him : ” 4 Am. & Eng. Ency. of Law (2d ed.), 443. Possibly, therefore, the special circumstances of the case would have sustained a finding that the note was actually delivered to one of the defendant’s places of business notwithstanding the mistake in the address and notwithstanding his positive testimony that it did not come to his hands. Be that as it may, however, we are quite clearly of opinion that the referee was not bound so to find, and that in the absence of such finding the other facts found by him were insufficient to warrant the conclusion of law that due notice was given to the indorsor. The sixth and seventh assignments of error are sustained.

Judgment reversed.