the effect of omission is the same as that of a demand of payment, which has already been considered. Reference should be made to the cases cited in the notes under the preceding chapter in this connection. If a party is discharged from liability by an omission to give notice of dishonor, he is also discharged from liability for the debt or other consideration for which the instrument was given.70 d. Notice to a drawer, or one of successive indorsers. The effect of a failure to give notice of dishonor to a drawer or indorser is to relieve such party from liability; the indorser to whom the notice is given is charged with the liability, and the other indorsers are released therefrom. Thus, if the indorser of a bill of exchange is given notice of dishonor, it is sufficient to bind him, although notice is not given the drawer." And it is not necessary for the holder of a note to give notice of nonpayment to a prior, in order to hold a subsequent indorser;72 he is only required to notify the indorser to whom he intends to look for payment.73 It belongs to each indorser to see for himself that prior indorsers are duly fixed with the liability, if he would have a remedy over against them. And where a notice is thus given by each indorser to his Bowman, 38 Iowa, 92; Rea v. Dorrance, 19 Me. 137; Weber v. Matthews, 101 Mass. 481; Coon v. Pruden, 26 Minn. 105; Cayuga County Bank v. Warden, 1 N. Y. 413. 69. See ante, chap. VII, § 90. 70. Bridges V. Bury, 3 Taunt. (Eng.) 131; Jones v. Savage, 6 Wend. (N. Y.) 659; Woodcock v. Bennett, 1 Cow. (N. Y.) 711. 71. Hare v. Henty, 10 C. B. (N. S.) (Eng.) 65; Prideaux v. Criddle, L. R., 4 Q. B. (Eng.) 455; Moule v. Brown, 4 Bing. N. C. (Eng.) 266; Piner v. Clary, 17 B. Mon. (Ky.) 645; Moody v. Mack, 43 Mo. 210; Gough v. Staats, 13 Wend. (N. Y.) 549; Merchants' Bank v. Spicer, 6 Wend. (N. Y.) 443; New Hanover Bank v. Kenan, 76 N. C. 340. 72. Baker v. Morris, 25 Barb. (N. Y.) 138. Pa. St. 139; Cardwell v. Allan, 33 Gratt. (Va.) 160; Westfall v. Farwell, 13 Wis. 504; Big Sandy Nat. Bank v. Chilton, 40 W. Va. 491, 21 S. E. 774. In the case of Henry v. State Bank, supra, it was held that an indorser who has received due notice of the protest for nonpayment of a note held by a bank, will not be discharged be cause a prior indorser was not thus notified, notwithstanding it was the usage of the bank to notify all indorsers of paper not paid at maturity. And in Westfall v. Edwards, 13 Wis. 504, it was held to be no defense to an action by the holder against an indorser who was properly notified, to show that the holder attempted to notify other indorsers, but failed. 74. Each indorser to see that prior indorser is notified. In the case of Spencer v. Ballou, 18 N. 73. Only indorser to be charged Y. 327, the court said: "The need be notified.— Henry v. State only remaining objection by the deBank, 3 Ind. 216; Carter v. Bradley, 19 Me. 62, 36 Am. Dec. 735; Wood v. Callaghan, 61 Mich. 402, 28 N. W. 162, 1 Am. St. Rep. 597; Spencer v. Ballou, 18 N. Y. 327; Lawson v. Farmers' Bank, 1 Ohio St. 206; Struthers V. Blake, 30 charged but for that direction. fendant to his being held liable in this suit, is founded upon the direction by the plaintiff to the notary public not to charge the prior indorser, and the exclusion of evidence that the prior indorser would have been The immediate indorser it will inure to the benefit of the holder, and fix the liability of all of them.75 e. Notice of dishonor of nonnegotiable instruments.— The better rule seems to be that an indorser of a nonnegotiable instrument is liable, although no notice of dishonor is given him by the holder.76 This rule is based upon the theory that nonnegotiable instruments are not within the protection of the law merchant, and that a person indorsing such an instrument for transfer is not an indorser in a commercial sense, and the paper does not, on its face, import a contract of indorsement.77 But there are a number of decisions in conflict with this principle, to the effect that notice of dishonor Bank v. Fellows, 28 N. H. 302; West plaintiff was under no obligation to the defendant to charge the prior indorser, and might lawfully direct that notice of the protest be served only on the defendant. The holder of a 75. United States Bank v. Goddard, note is required to charge only the 5 Mason (U. S.), 366; West River indorsers to whom he desires to look Bank v. Taylor, 34 N. Y. 128; Metrofor payment, and it belongs to each politan Bank v. Engel, 66 App. Div. indorser to see for himself that prior (N. Y.) 273, 72 N. Y. Supp. 691. indorsers are duly fixed, if he would 76. Notice not required to bind have a remedy over against them." indorser of nonnegotiable instruments. And in Lawson v. Farmers' Bank, 1 Ish v. Mills, Fed. Cas. No. 7,104, Ohio St. 206, 221, the court said: 1 Cranch C. C. (U. S.) 567; Huse "It is claimed on behalf of the plain- v. Hamblin, 29 Iowa, 501, 4 Am. tiffs in error in this case that the Rep. 244; Billingham v. Bryan, notice of dishonor of the bill should 10 Iowa, 317; Richards v. Warring, have been sent immediately to them, 1 Keyes (N. Y.), 576; White v. Low, instead of being sent, as it was in the 7 Barb. (N. Y.) 204; Seymour v. Van first place, to the Bank of Salem. The Slyck, 8 Wend. (N. Y.) 403. In the holder is not bound to give notice of case of Haber v. Brown, 101 Cal. 445, the dishonor to any more than his 35 Pac. 1035, it was held that in reimmediate indorser. And each party spect to the immediate indorsee of to a bill has the same time after no- the payee of a nonnegotiable promtice to himself, for giving notice to issory note, the indorsement will other parties beyond him, that was ordinarily create the same liabiliallowed to the holder after the de- ties and obligations as the infault." In Baker v. Morris, 25 Barb. dorsement of a negotiable note. (N. Y.) 138, the court said: "It court said: "It is unnecessary to was not necessary for the holder in decide in this case whether demand order to charge the subsequent in- and notice of nonpayment of a nondorser, to give notice of nonpayment negotiable note indorsed in blank by to the prior indorser; it belongs to the payee is required to be given in each party to a note or bill to give every case of a transfer of such a notice, or to see that notice is given, note in order to entitle the immediate to all prior parties to whom he would indorsee of the payee to recover resort in case it should be necessary." thereon against the payee; but such Citing Morgan v. Woodworth, 3 Johns. demand and notice ought to be reCas. (N. Y.) 89; 3 Kent's Comm. 105, quired where the words written over 108; Chitty on Bills, 530. See the blank indorsement show that the also Lynn First Nat. Bank v. Emith, signature was considered and treated 132 Mass. 227; Eagle Bank v. Hatha- by the indorser as if it were an inway, 5 Metc. (Mass.) 212: Wood dorsement of negotiable paper." v. Callaghan, 61 Mich. 402, 28 N. W. 162, 1 Am. St. Rep. 597; Manchester The 77. Richards v. Warring, 1 Keyes (N. Y.), 576. must be given to an indorser of a nonnegotiable instrument, otherwise he will be discharged from his liability.' 78 f. Notice to party or agent; statutory provision.- The Negotiable Instruments Law provides that: "Notice of dishonor may "be given either to the party himself or to his agent in that "behalf." 79 This is in effect the same as a provision contained in the English Bills of Exchange Act.80 The rule seems to be the same as that which exists independent of the statute. It has been held that it is the duty of the drawer or indorser of a bill, if he be absent from his place of business or residence, to see that there is some person there to receive notice on his behalf.81 Where an agent has authority to indorse for his principal, it will be sufficient to give notice of dishonor to the agent.82 And where an agent is employed in liquidation of the affairs of a copartnership, a service upon him will be sufficient to bind the firm as an indorser.83 It seems to have been generally accepted as true that where a merchant or trader indorses a bill, a notice of dishonor left with his clerk at his place of business is sufficient to bind him. Where 78. Jones v. Robinson, 11 Ark. 504, 54 Am. Dec. 212; San Diego Bank v. Falkenhan, 94 Cal. 141, 29 Pac. 866; Parker v. Riddle 11 Ohio, 103; Aldis v. Johnson, 1 Vt. 136. In the case of Hart v. Eastman, 7 Minn. 74, it was concluded that as between the indorser of a nonnegotiable instrument, and his immediate indorsee, the indorsement operates in legal contemplation as a bill of exchange. "That it was the request of the indorser that the maker (who stands in this respect very much in the situation of an acceptor) would pay the amount to the indorsee. That it might be treated with strict propriety as an authority given to the indorsee to receive the money due on the note, and also as an undertaking that it shall be paid to him upon due presentment, and, therefore, as involving, in case of dishonor, and due notice thereof, the ordinary responsibility of an indorser of negotiable paper." 79. Neg. Inst. L. (N. Y.), § 168. For same section in statutes of other States see Appendix. 82. Firth v. Thrush, 8 B. & C. (Eng.) 391. In New York it has been held in a recent case that a notice of protest of a draft may be served upon an agent of the payee and indorser of the draft, where the agent has authority to make and indorse drafts, and has authority to act and has acted as the general agent of the payee in the conduct of his business, and has had full charge of the acts and dealings with the bank at which the paper was discounted. Persons v. Kruger, 45 App. Div. (N. Y.) 187, 60 N. Y. Supp. 1071; s. c., 52 App. Div. (N. Y.) 635, 66 N. Y. Supp. 1135. See also Lake Shore Nat. Bank v. Butler Colliery Co., 51 Hun (N. Y.), 63, 68, 3 N. Y. Supp. 771. 83. Fassin v. Hubbard, 55 N. Y. 465. 84. Allen v. Edmundson, 2 Exch. (Eng.) 723; Viale v. Michael, 30 L. T. (N. S.) (Eng.) 453. A notice left in the office and usual place of business of the indorser with a person in charge of the office is sufficient. Edson v. Jacobs, 14 La. 494; Sullivan V. Godwin, 20 La. 80. English Bills of Exchange Act, Ann. 33; Lord v. Appleton, 15 Me. 1882, § 49(8). 270; Mercantile Bank v. McCarthy, 7 81. Allen v. Edmundson, 2 Exch. Mo. App. 318. (Eng.) 723. Notice of protest left at a custom it is attempted to charge an indorser by a service of a notice of dishonor upon his agent, it must appear that it was within the scope of the agent's duties to receive such notice.85 Notice of dishonor may be properly served upon the general agent of a corporation.8 g. Service of notice where party is dead; statutory provision.The Negotiable Instruments Law provides that: "When any party is dead, and his death is known to the party giving notice, the notice must be given to a personal representative, if there "be one, and if, with reasonable diligence, he can be found. If "there be no personal representative, notice may be sent to the "last residence or last place of business of the deceased." 87 This provision is similar to the rule of the English Bills of Exchange Act;88 and is in most respects similar to the rule as it exists independent of the statute.89 If the indorser is known to be dead by the holder, a notice of dishonor addressed to him will not suffice to charge his estate.90 And a notice was held sufficient where it was directed to the estate of the deceased at his last post-office address, upon the maturity of the note, and notice was subsequently given to the executor when appointed. And an executor named in a will which has not been probated, is a personal representative of the deceased upon whom notice of dishonor may be house on the desk of an absent in- A notary testified that he gave the notice to a boy whom he met in the indorser's yard, and who said he was the indorser's boy; that he saw the boy go with it toward the house, but did not see him enter the door; held that this was not a sufficient service. Adams v. Wright, 14 Wis. 408. 85. New York & Atl. Contracting Co. v. Selma Sav. Bank, 51 Ala. 305, 23 Am. Rep. 552. Authority of agent.- In the case of King v. Griggs, 82 Minn. 387, 85 N. W. 162, where it was held that the authority of the agent may be implied as well as express; and if the circumstances are such as to warrant the implication that the relation of principal and agent subsists between the party entitled to notice, and the one to whom it is given, it will operate as effectually to charge the principal as though the agent had been expressly authorized. 86. Bank of Auburn v. Putnam, 1 Abb. Ct. App. 80, 3 Keyes (N. Y.), 343. 87. Neg. Inst. L. (N. Y.), § 169. For same section in statutes of other States see Appendix. 88. English Bills of Exchange Act, 1882, § 49 (9). 89. Mr. Chalmers says (Bills of Exchange [5th ed.], p. 160): "This is probably declaratory, though there was no English decision in point. It has been held in New York that notice sent to an indorser in ignorance of his death was sufficient. Merchants' Bank v. Birch, 17 Johns. (N. Y.) 24. The act appears to confirm this view." 90. Cayuga County Bank v. Bennett, 5 Hill (N. Y.), 236; Louisiana State Bank v. Dumartrait, 4 La. Ann. 483. 91. Bank of Port Jefferson v. Darling, 91 Hun (N. Y.), 236, 36 N. Y. Supp. 153. properly served.92 Notice to one of two or more personal representatives of a deceased drawer or indorser will be sufficient.93 It is also a general rule that where the indorser is dead, and no personal representatives have been appointed or can be discovered by reasonable diligence, notice of dishonor should be addressed to the last place of residence of the deceased indorser.** If the holder of the instrument have no knowledge of the death of the indorser or drawer it will be sufficient to bind the estate of decedent if the notice of dishonor be sent to the place where he resided prior to his death.95 And it was held that, although the holder had knowledge of the death of the indorser, a notice mailed to his last place of residence would bind his estate, if it was ultimately delivered to the administrators of the decedent.98 h. Notice to partners; statutory provision.— The Negotiable Instruments Law provides that: "Where the parties to be notified are partners, notice to any one partner is notice to the firm, even "though there has been a dissolution." 97 This same rule has been laid down in a number of cases.98 If a bill drawn on a firm by one of its members in the partnership business is presented and payment refused, the drawer will be bound without a notice of dishonor, since the knowledge of the partner who refused payment will be deemed notice of nonpayment to all the members of the firm, including the drawer.99 The dissolution of the firm does not affect the authority of one of its members to receive a notice of dishonor of paper indorsed by the firm prior to such dissolution.1 92. Drexler v. McGlynn, 99 Cal. 143, 33 Pac. 773. 93. Beals v. Peck, 12 Barb. 245; Carolina Nat. Bank v. Wallace, 13 S. C. 247, 36 Am. Rep. 694. 94. Dodson v. Taylor, 56 N. J. L. 11, 28 Atl. 316; Goodnow v. Warren, 122 Mass. 79, 23 Am. Rep. 289. 95. Planters' Bank v. White, 2 Humph. (Tenn.) 112; Barnes v. Reynolds, 5 Miss. 114. 96. Beals v. Peck, 12 Barb. (N. Y.) 245. 97. Neg. Inst. L. (N. Y.), § 170. For same section in statutes of other States see Appendix. ber of partnership it is sufficient to hold legal representatives of deceased partner; Dabney v. Stidger, 12 Miss. 749; Fourth Nat. Bank v. Altheimer, 91 Mo. 190, 3 S. W. 858; Riddle v. McBeth, 2 Ohio Dec. 606; Collins v. Bank of Titusville, 1 Walk. (Mich.) 194; Cocke v. Bank of Tennessee, 6 Humph. (Tenn.) 51. Where a draft was drawn and discounted by a bank for the benefit of a firm, one of the members of which was cashier of the bank, notice of nonpayment, acquired by him in the course of the bank's business, is notice to the firm. Citizens' Sav. Bank v. Hays, 96 Ky. 365, 29 S. W. 20. 99. Gowan v. Jackson, 20 Johns. (N. Y.) 176. 98. Notice to partners.- Coster v. Thomason, 19 Ala. 717; Magee v. Dunbar, 10 La. 546; Wheeler V. Maillot, 20 La. Ann. 75. Where 1. Effect of dissolution.- Hubbard notice is given to surviving mem- v. Matthews, 54 N. Y. 43, 50. As |