New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-03-04

1
notices of protest OF bills of exchange. ETC.,
were not intended to change the CONNER
cial law as it stood before, but to afford IN
| AID OF commerce a new, convenient anu
permanent means of proof No one If Dounu
to employ notary to make demand OF
note, or TO give notice to an lnd0rser. La
thrOp We. Lawson ct al, An, 80 by the
commercial law it is not absolutely neces-
sary that the demand OF payment OF a
pronissory note or inland bill of exchange
should be made and the notice OF non pay
ment given by notary. ANY person com
petent to testify as a witness may do so,
but the mode Of proof is different in the two
cases. The certificate OF the notary IS evl
dence of the demand and notice OF protest,
but wheE the demand is made or notice
| given by private person, 1t must be stllct-
| " proved by the person making il, or by
| other competent testimony. Such demand
has been proved in this case by the testi-
mony of f. w Carroll. who made the de
mand, and also by 4. n. Craig, on whom
the demand was made.
Have Airey & Co., as agents of Nicely,
neglected their duty in not presenting this
draft for payment in due timel The
| evidence shows that they received it on the
evening of the twenty-frst of December,
and presented it that evening or next day
for payment some Gig ht days before its ma
turity, and also presented it promptly on
| the twenty ninth of Decem Der, the day of
| it's maturity and dishOnor On the thlt-
| tieth of December they telegraphed to their
| principal Nicely, the refusal to pay the
| draft, and on the same day they advised
| him by letter of the same circumstance, and
in that letter they inclosed the draft.
| Airey & Co. have not therefore, neglected
their duty in the presentation o. the draft,
| and the demand Of payment, aE well as III
the notification which they gave TO Nicely
of the refusal to pay the draft.
Was the firm of Airey & Co. obliged to
give notice to Gould, the drawer OF the
draft, OF the failure of Garrard, Craig ~
Co. to pay it when presented to them at
maturityi | think not When the defend
ants took the draft for collection they be-
came the manufactures or agents OF the
plaintiffs only. There was no privity be-
tween them and Gould, their drawer; their
responsibility was only to those who had
employed them. They gave notice TO the
plaintiffs, their employers, by the earliest
reasonable opportunity, as i have already
shown, and that was sufficient.
Unless there be clear usage OF trade. it
seems not to be part of such agents duty
to give advice to third persons of the re-
ceipt, acceptance, or refusal of acceptance
of bill, although it was their duty to give
such advice to their employers. Story on
Agency, section Dos.
Counsel for plaintiffs argue that there
was no acceptance of the draft, because
the name Of the drawee was not written
across the instrument; that, having been
presented on the twentieth or twenty-first
of December, and not accepted, the notice
OF nOn-payment forwarded TO Nicely on the
thirtieth-nine or ten days thereafter-eame
too lata. There was . verbal acceptance,
even before maturity. An acceptance may
be verbal, in the absence Of any local statute
Al. 4
Promiss0ry Notes, section i26. A parole
promise to settle is good as an acceptance
Second Foster, 1873. The notice of non
payment, after this verbal acceptance,
could not have been given until such non
payment was ascertained on the thirtieth,
the day of the maturity of the draft, and,
being ascertained, il was forwarded to
Nicely on that day.
Gould was lessee Of plantation belong
ing to the succession of which Neeiey was
an executor; the draft was given FOR rent
of that plantation. When the draft
turned out to be worthless. owing TO the
insolvency of Garrard, Craig & Co.,
Seely had n privilege on tie prop
erty Of Gould found ON the plantation,
aud might have enforced that privilege,
and realized his rent. The acceptance by
Nicely of the draft was no novati0n of the
original claim for rent. But whether plain
| lind no reasons sufficient to sustain their
demand in this case. | can see no dereiic-
ton of duty on their part as agents of plain
ttf5 in this matter. The evidence shows
that they used due diligence in endeayOring
to collect the amount of the draft which
gave rise 10 this suit, and their failure i
not to be attributed to any faches or
carelessness on their part. Even if the
statements of Sachse and Inge in regard to
Stanley a Thomas IN trup If Mr. Vbcu,oa
did say that his firm would lose $1,000 in
consequence of the failure of Garrard, Craig
II Co. he was mistaken a. 70 the RESPONSE
bilIty of his firm in the premises. ] am of
opinion that that firm Is Rot responsible for
the amount OF the draft, or for any part
thereof.
Wherefore let the petition and demand of
plaintiffs be dismissed with costs.
Sixth Distr.c: Csust.
The following is the decision Of Judge
Saucer in the case of Mrs. Sophia G. Quinn
rs. Manhattan Insurance Company:
Plaintiff declares or policy of insurance,
dated New York, August 20, 1866, whereby
defendants contracted, in consideration Ct
the sum of S565 60. in hand paid, and of the
annual premium of SJ6J 30 to be paid on or
before the twentie h day of August of every
year. tor nine years during the continuance
of the policy, to insure the life OF II. A.
Schuerman, then the husband OF plaintiff,
for the sum OF $4,000.
Schuerlnan died a violent death on 3u-
gust .!G, 1863 and the question is whether
the policy subsisted when he expired
Plaintiff 8 counsel insist that the contract
must be governed by the laws of this State
and not by those Of the State OF New York
Ny opinion is that it must be governed by
the laws which the contracting parties have
made for themselves, and the contest in
this case is limited to them.
1t appears from the policy that the third
annual premium should have been paid on
August 20, 1868, six days prior to the death
Of the insured; but the plaintiff contends |
that though the policy is dated August 20,
1866, it only became binding contract on
September 1, 1866, the day on which it was
cOuntersigned by the agent OF the defend
ants in this city, and on which the first pre-.
MUM was raid; and that, therefore the
subsequent annual premiums were only due
and exigible on the fourth of September of
ance of the policy. This position is uutena.
BILE. The contract fixes the date of Angus.
20 as that on winch, by its very terms, the
premiums should become duo each year
thereafter. II is true that the policy
states tina: the eontrac: woulG he
binding on tho parties only from the
day on which the policy should be
countersGued by the agen: of the company
here, on which also the premium should be
paid. but tina: fact can no, be held TO alter
the date of the contract. The policy pro
vides, on :hc contrary. that the date fixed
in 1t should nOt be affected by the delay in
cident o. its Transmission from New York
to this city. and ON the countersigpaturc OF
the agent ard the payment of the pre- iurc.
Bat the whole record teens with proof that
there was no misunderstanding between the
parties on this subject. Plaintiff, finding
that defendants had discontinued Their
agency, RENTED the second years pre-.
mium by express, on August 20, 1867. II
was received by the defendants on August