Starr lived, at the banks, Mr. Cook and the Citizens' Bank also, and I wouldn't say positively as to who else I did inquire of * * * I mailed the notice to Starr at Spickards, Mo. *

Starr did not receive the notice until some three months after it was mailed, for the reason that Tindall, and not Spickards, was his post-office. The farm he occupied as a tenant was about one mile nearer Spickards than Tindall, either by wagon road or as the crow flies, and Spickards, though a small town, was much larger than Tindall. But Starr had made the latter place his post-office address while living on a farm nearer to it than to Spickards, and continued to get his mail there. No doubt is suggested in the evidence of the good faith of the notary and of plaintiff's collection agent in mailing the notice to Starr's nearest post-office, nor do we find anything indicative of bad faith on the part of plaintiff, the owner of the note. He was not in Trenton on the date of the protest, nor had he imparted to his collection agent the information he possessed respecting Starr's post-office address. Had he done this, we perceive nothing in the facts known to him to support the conclusion that his collection agent and the notary might have acted differently. The farm where plaintiff lived was, perhaps, two miles from that occupied by Starr. While the note was maturing, they met occasionally and casually on the public road, at Tindall, or at a neighborhood church, but plaintiff did not know that Starr received his mail at Tindall, and it appears that he and Starr were acquainted only slightly.

While it is true that the holder of commercial paper for collection must be regarded as a separate and independent holder for the purposes of presentment, demand, protest, and notice of dishonor (Renshaw v. Triplett, 23 Mo. 213; Griffith v. Assmann, 48 Mo. 66; Ivory v. Bank, 36 Mo. 475; Bank v. Briedow, 31 Mo. 523; Young v. Hudson, 99 Mo. 102), we are willing to concede for argument that it was the duty of plaintiff to communicate to his collection agent the facts in his knowledge relating to the post-office address of the indorser, but we do not sanction the contention that he was charged by law with the further duty either to notify the indorser personally of the dishonor of the note or to make inquiries in the neighborhood to ascertain the place where the indorser received his mail. The note, by its terms, being payable at Trenton, it was very natural that plaintiff should employ an agent at that place to look after its collection, and that he should rely on his agent to take the necessary steps to hold the indorser. We are going far enough when we assume that it was his duty to communicate to his agent the knowledge. of facts material to the subject of the employment he had or might acquire during the course of the employment. It was not his duty to perform personally the very duties he had delegated to his agent. When a person employs an agent to do a thing, he should not be held to be remiss for relying on his agent and only may be

held liable for the negligent or wrongful acts of the agent in the performance of the delegated duty under the principle that what one does by the hand of another he does himself.

Imputing to the collection agent and the notary knowledge of the facts known to plaintiff, our chief concern is with the question of whether the notary exercised reasonable diligence in the giving of notice to the indorser. Since we find in the record no controversy over material facts, the question is one of law, not of fact. As early as the case of Linville v. Welch, 29 Mo. 203, it was decided by the Supreme Court that what is due diligence in giving notice of dishonor of a bill of exchange is a question of law when the facts are undisputed, and, when they are in dispute, the court should give hypothetical instructions, leaving the facts to be determined by the jury. Sanderson's Adm'r v. Reinstadler, 31 Mo. 483; Fugitt v. Nixon, 44 Mo. 295.

Considering the case, then, from the standpoint presented by the facts known to plaintiff, knowledge of which we ascribe to the notary, and by the facts acquired by the notary from his own inquiries, and treating the question of due diligence as a question of law, we next turn to consider the principles and rules by which the holder of a bill of exchange must be controlled in giving to an indorser notice of dishonor. The liability of the indorser is conditioned upon the existence of two facts, viz: (1) That the maker has made default in the payment of the bill at maturity; (2) that due notice of that fact be given the indorser. As to what will constitute sufficient notice, it is well settled that personal service of the notice is not required. Constructive service will suffice if reasonable diligence be exercised to make it in the manner best adapted to convey actual notice. "Where the party to be served is a resident of the city or town where the protest is made, the course required is to give him personal notice or to leave it at his dwelling or place of business. But if he lives in the country, then a notice by mail to his postoffice will be sufficient." Barrett v. Evans, 28 Mo. 331; Sanderson's Adm'r v. Reinstadler, supra. When the indorser lives in the country and his postoffice address is not known to the holder, it is the duty of the latter to make reasonable inquiries in the town or city where the bill is payable, and, in default of more specific information, to address the notice to the postoffice nearest the residence of the indorser. But the holder is not justified, in all cases, in sending the notice to the nearest postoffice. He must act in good faith always and with reasonable diligence to learn the place where the indorser receives his mail, and, learning it, must send the notice there, regardless of whether it be the nearest postoffice.

With these principles before us, we do not hesitate to declare as a matter of law that the notary, whose good faith is not questioned, exercised reasonable diligence and acted on the information he received in a way which would have commended itself to any reasonably careful

and prudent person in his situation. He made inquiries of several persons, all of whom appeared to possess some information on the subject, and all expressed the belief that Spickards was the proper address of the indorser. Taking these opinions, in connection with the facts that Spickards was the nearest town to the indorser's farm and was a much larger pla than Tindall, we think any person in the situation of the notary would have come to the conclusion, as he did, that the notice should be sent there. Finding, as we do, that the notary acted properly, it is immaterial that the indorser failed to receive the notice within a reasonable time. That was his misfortune, for which, in a sense, he was responsible. He was justified in standing strictly on his right to legal notice, but presumably he knew of the fact of the maturing of the note, and from all the circumstances must have anticipated that notice of dishonor likely would be addressed to him at Spickards. The notice was sufficient.

The case was not tried in accordance with the views expressed, and it follows that the judgment must be reversed and the cause remanded. . All concur.

$ 179

BANK OF COMMERCE v. CHAMBERS.

14 MISSOURI APPEALS, 152. — 1883.

ACTION against maker and indorser. Indorser sets up a want of notice. The indorser (Frost) had a general residence or domicil in St. Louis and a general place of business in St. Louis, but his family were sojourning at Selma, Mo., a place without a postoffice, while he was sojourning at Washington, as a member of Congress. Notices. were mailed to him, addressed to St. Louis, Washington and Selma, respectively. Judgment for plaintiff.

THOMPSON, J. [After deciding that the notice mailed to St. Louis were insufficient because holder and indorser both resided in St. Louis.]

We are of opinion that the general notice sent by mail and addressed "Hon. R. Graham Frost, Washington, D. C.," might properly have been regarded by the trier of facts as a good notice. There is evidence tending to show that, before the notary sent this notice, he went to the postoffice and there inquired for Mr. Frost's address, and was told it was Washington, D. C., whereupon he mailed the notice to him as stated.

This was on the 23d of December, 1880. The Congress was then in regular session, but it had, on the day previous, taken the usual holiday recess, as was shown by a copy of the Congressional Record put in evidence. This recess was taken from the 22d of December until the 5th day of January following. That a notice of protest sent

by mail to a member of Congress while engaged in discharging his public duties as such at Washington, is a good notice, has been held, both in Massachusetts and Mississippi. (Chouteau v. Webster, 6 Metc. 1; Tunstall v. Walker, 2 Smed. & M. 638.) In the former of these cases, Daniel Webster, a senator from Massachusetts, was, when the notice of protest was sent to him by mail, at Washington, D. C., attending a special session of Congress at Washington, and he had at Boston, just as Mr. Frost had at St. Louis, a place of business and an agent to attend to his business; and yet the court, Chief Justice Shaw delivering the opinion, held that the notice thus mailed to him was a good notice.

The fact that Congress had taken this temporary recess may not have been known to the notary, and, if known, it would not necessarily indicate to him that Mr. Frost would be absent from the capital during such recess. If it should indicate this it would not impair the legal sufficiency of the notice; because the controlling rule is that where the indorser has different residences and different places of business, the notice must be sent to the place, where, upon diligent inquiry, it seems most likely to reach him with certainty and promptness. (Cabot Bank v. Russell, 4 Gray, 169, 470, per Shaw, C. J.)

Nor can the circumstance that the indorser was in the habit of receiving his mail, not at the general postoffice in Washington, but at a special postoffice in the capital building, impair the legal sufficiency of this notice, unless this fact were known to the notary or would have been disclosed to him upon reasonable inquiry. That he did not know this appears from the evidence, and that it was not disclosed to him

on the inquiry which he made at the postoffice in St. Louis also sufficiently appears. It seems that this postoffice was the most proper place at which to make such an inquiry, for it must be supposed from the nature of Mr. Frost's public duties at the time that numerous letters were constantly received at the St. Louis postoffice for transmission to him at his official residence at Washington. At all events, it cannot be said that this testimony was not sufficient to take the case to the trier of the fact upon the question of diligence. It has been held several times, that where there are two or more postoffices in the town where the indorser resides, a notice sent by mail to the town generally will be a good notice, unless a reasonable inquiry would have disclosed to the holder or the notary the actual postoffice at which the indorser commonly received his mail. (Burlingame v. Foster, 128 Mass. 125; Morton v. Westcott, 8 Cush. 425; Cabot Bank v. Russell, 4 Gray, 167.)

The "towns" here spoken of are not cities or villages, but New England towns, which correspond to townships in Missouri and Illinois, each of which frequently contains several villages and several postoffices.

[The learned judge then holds that notice addressed to Selma was good, in view of the evidence that mail addressed to Selma was regularly sent to Crystal City, the postoffice nearest Selma. 1

1

Judgment affirmed. 2

III. When delay in giving notice excused.

§ 184

JAMES v. WADE.

21 LOUISIANA ANNUAL, 548.-1869.

HOWE, J. - The defendant is sued as the indorser of a bill of exchange drawn by W. R. Hughes on Moore and Browder, of New Orleans, and by the latter accepted, payable on the fifteenth February,

1863.

On the day of its maturity the bill was protested by a notary in New Orleans, and a notice deposited in the postoffice in that city addressed to the defendant, at Winnfield, parish of Winn, Louisiana.

The record shows that in February, 1863, all postal and commercial intercourse was suspended between New Orleans and Winnfield. The war was then raging, and the deposit of the notice in the postoffice in New Orleans had no effect in converting the conditional obligation of the indorser into an absolute liability. (19 A. 43, 63, 64, 72, 90; 20 A. 399.)

If the holders of this bill desired to bind the indorser, it was their duty to have given him notice of dishonor within a reasonable time after the close of the war, and the resumption of commercial intercourse. There being no evidence that any notice except the one described above was ever given, the indorser must be held to have been discharged.

*

Judgment affirmed."

§ 184 UNION NATIONAL BANK v. MARR'S ADMINISTRATOR. 6 BUSH (KY.) 614.1869.

ACTION against drawer of a bill drawn in Missouri upon a drawee in New Orleans and presented July 17, 1861, and dishonored. Judgment for defendant.

JUDGE HARDIN delivered the opinion of the court.

1 See Bank v. Howlett, 4 Wend. 328, ante, p. 566.- H.

2 Accord: Graham v. Sangston, 1 Md. 59. But if the indorser simply visits a place for a purpose clearly temporary and special, he is not "sojourning" within the rule of the above cases. Walker v. Stetson, 14 Oh. St. 89. H.

3 Accord: Norris v. Despard, 38 Md. 487; Dunbar v. Tyler, 44 Miss. 1; Harden v. Boyce, 59 Barb. (N. Y.) 425. So, also, delay occasioned by presence of malignant disease. Tunno v. Lague, 2 Johns. Cas. (N. Y.) 1.-H.