페이지 이미지
PDF
ePub

notice may given either to the party himself or

to his trustees or assignee. When given. SECTION 1678-32. Notice may be given as

soon as the instrument is dishonored; and unless delay is excused as hereinafter provided, must be given within the times fixed by this

chapter. Where parties reside in same

SECTION 1678-33. Where the person giving place.

and the person to receive notice reside in the same place, notice must be given within the following times:

1. If given at the place of business of the per son to receive notice, it must be given before the close of business hours on the day following:

2. If given at his residence, it must be given before the usual hours of rest on the day following.

3. If sent by mail, it must be deposited in the post office in time to reach him in usual course

on the day following: Where parties reside in dif

SECTION 1078-31. Where the person giving ferent placos. and the person to receive notice reside in differ:

ent places, the notice must be given within the following times:

1. If sent by mail, it must be deposited in the post office in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail thereafter.

2. If given otherwise than through the postoffice, then within the time that notice would have been received in due course of mail, if it had been deposited in the post office within the

time specified in the last sub-division. By mail.

SECTION 1678-35. 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. When mailed. SECTION 1678-36. Notice is deemed to have

been deposited in the post office when deposited in any branch post office or in any letter box under the control of the post office department.

SECTION 1678-37. Where a party receives no- Notice to ante: tice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dis

honor.

SECTION 1678-38. Where a party has added Where to be 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 must be sent as follows:

1. Either to the post office nearest to his place of residence, or to the post oflice where he is accustomed to receive his letters; or

2. If he live in one place, and have his place of business in another, notice may be sent to

either place; or

3. If he is sojourning in another place, notice may be sent to the place where he is sojourning.

But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section. NOTE--Notice may be served either at place of business or resi

Simms v. Larkin, 19 Wis., 412.

dence.

V.

SECTION 1678–39. Notice of dishonor may be Waiver of

notice. waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.

NOTE Same rule in Wisconsin. Worden Mitchell, 7 Wis., 139.

Is not within the statute of frauds, and may be by parol. Ilid. l'art payment by the endorser, with knowledge of want of presentment, etc., is a waiver. Knapp v. Runals, 37 Wis., 135. It may be waived for a specific time, and must then be given. Worden v. Mitchell, supra. Where a note, on or a short time before the day of its maturity, is presented to an indorser, and the latter then promises that if the note is suffered to run he will pay it whenever payment is called for, an omission of protest and notice caused by such promise will not discharge the indorser. Ilale v. Danforth, 46 Wis., 554. A promise to pay by drawer or indorser who is ignorant of the failure to give notice of dishonor, is not a waiver, Schierl v. Baumel, 75 Wis., 75.

SECTION 1678-40. Where the waiver is em- Waiver in bodied in the instrument itself, it is binding instrument. upon all parties; but where it is written above the signature of an indorser, it binds him only.

1

Waiver of protest.

Notice, when di-pensed with.

SECTION 1078-11. waiver of protest, whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver not only of a formal protest, but also of presentment and notice of dishonor.

SECTION 1678-12. Notice of dishonor is dispensed with when, after the exercise of reasonable diligence, it cannot be given to or does not reach the parties sought to be charged.

NOTE-As where the place of residence or business of the maker or indorser cannot be found after reasonable diligence. of proof is upon the holder. Eaton v. MeMahon, 12 Wis., 484.

The burden

Delay, when excused,

1

SECTION 1078-43. Delay in giving notice of dishonor is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, notice must be given with reasonable diligence.

NOTE--O and L were joint indorsers of a promissory note, and L died a few days before its maturity; it was protested for non-parment, and ( had due notice thereof, and the notary who protested the note made inquiries, for three days before the note became due. in the ward where L had resided and learned of the fact of his death, and that he had no family except a wife, and that she bad gone to Canada with her father, and he made inquiries of persons whom he thought would be most likely to know, whether any er ecutor or administrator had been appointed on L's estate, and could not learn that any had been appointed; he then deposited two notices in the post office at Milwaukee, where L had resided and died, one directed to L and the other to “L's executors and administrators." Ileld, that the notary was authorized to presume, from the information he had received, that L's family had no longer any residence in Milwaukee, and that he was not bound to go to the house where he had lived, to see if he could not find a serrat there who had once lived with the deceased; and that the notars had exercised due diligence to notify the representatives of L of the dishonor of the note. Boyd v. Orton, 16 Wis., 521.

A bank had notes for collection. The bank building was burned, and the bank had only resumed business in a tentative way in a temporary structure when the note became due. lleld, that this would not excuse a failure to notify indorsers. Merchts' Bk. F. State Bk., 94 Wis., 444.

[ocr errors]

Notice to

SECTIOX 1678-14. Notice of dishonor is not drawer, when not required. required to be given to the drawer in either of

the following cases:

1. Where the drawer and drawee are the same person;

[ocr errors]

2. Where the drawee is a fictitious person or a person not having capacity to contract.

3. Where the drawer is the person to whom the instrument is presented for payment;

4. Where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument;

5. Where the drawer has countermanded payment.

NOTE-- Notice of non-acceptance or non-payment is not required in order to charge the drawer, if he has no funds or effects in the drawee's hands; but the burden of proving that fact is upon the holder. Mehlberg v. Fisher, 24 Wis. 607.

Evidence that the drawees told the holder on presentation for ac. ceptance, that they had no money to pay it, is inadmissible, being hearsay. Ibid.

The burden of proof is upon the holder to show that he has used due diligence to find the residence or place of business of the maker or acceptor. Eaton y. McMahon, 42 Wis., 484.

ar

SECTION 1678-45.

Notice of dishonor is not Notice to inrequired to be given to an indorser in either of not required. the following cases :

1. Where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument;

2. Where the indorser is the person to whom the instrument is presented for payment;

3. Where the instrument was made or cepted for his accommodation.

SECTION 1678-16. Where due notice of dis- of subsequent honor hy non-acceptance has been given notice dishonor. of a subsequent dishonor by non-payment is not necessary, unless in the meantime the instrument has been accepted. SECTION 1678-47. An omission to give notice

Omission to of dishonor by non-acceptance does not preju- sive notice. dice the rights of a holder in due course sulsequent to the omission, but this shall not be construed to revive any liability discharged by such omission.

SECTION 1678-19. Where any negotiable in. Protest. strument has been dishonored it may be protested for non-acceptance or non-payment, as

the case may be; but protest is not required ercept in the case of foreign bills of exchange.

NOTE-Same rule in Wisconsin : Sumner v. Bowen, 2 Wis. 383. (changed by statute).

DISCILARGE OF NEGOTIABLE INSTRUMENTS.

When discharged.

SECTION 1679. A negotiable instrument is discharged:

1. By the payment in due course by or on be half of the principal debtor;

2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation;

3. By the intentional cancellation thereof by the holiler;

4. By any other act which will discharge a simple contract for the payment of money;

5. When the principal debtor becomes the holder of the instrument at or after maturity in his own right.

NOTE-PAYMENT.- The presumption that a note is unpaid, arising from the payee's possession thereof, uncancelled, and uner. tinguished by endorsed payments, is not sufficiently met by shoeing payments of money by the maker to the payee, without further showing that there were no other dealings between the parties, upon which such payments might have been made. Somervail v. Gillies. 31 Wis., 132.

Where such absence or other dealings is shown, proof of monets paid by the maker to the payee would create a strong and almost conclusive presumption that they were paid upon the note.

The cancellation and surrender of a promissory note upon the giving of a new note in renewal thereof, does not raise any presumption that the renewal note is taken in payment of the debt. but an agreement to that effect must be shown. First Nat. Bk. of Racine v. Case, 63 Wis., 504.

A draft was sent by the payee, a La Crosse bank, to a bank at Sparta for collection. The Sparta Bank, at the request of the drawee and on the faith of his solvency, gave him credit for the amount, made its own draft on a Chicago bank payable to the La Crosse bank, and mailed it to the latter "in payment of" the draft first mentioned. lield, that this was a delivery of the Chiago draft by the drawee in the first draft, through the Sparta bank, to the La Crosse bank, the payee, and that the Sparta bank could net, on learning of said drawee's insolveney, stop payment of the ("hicago draft or withdraw it from the mail.

Canterbury v. Bank of Sparta, 91 Wis., 53.

Accepting new notes of the same maker, for a smaller amount. in full payment and satisfaction, and the new notes being paid. operates as payment so that a surety is discharged. Jaffray . Trane, 50 Wis., 319.

« 이전계속 »