Forbes v. National Bank of Omaha,

office, or is in the habit of resorting to the post-office in such town, city or village for mail matter, then the notice may be legally served on him by depositing the same in such post-office, directed to the party to be notified at the post-office where the same is deposited.

In enumerating the States where this question has been decided either way I do not include Kentucky, because that State is about equally divided on the question. The former view having been taken by the old Supreme Court presided over by JOHN BOYLE, C. J., in 1832, and the latter by the Supreme Court of that State in 1858 in an exhaustive opinion by Judge STILES. Nor do I include Mississippi, where the question has been several times before the Supreme Court, and where, unfortunately, the holdings have not been uniform. But their latest two, and I think best reasoned cases, follow New York, Massachusetts, etc.

But all the cases, as well those which hold the latter as the former view, agree in this, that where the person to be notified resides in the same city or village with the person whose duty it is to give the notice, then notice cannot be given through the postoffice.

Having carefully examined all of the cases cited by counsel, I have failed to find any sufficient reason, or indeed any reason, for a distinction in this respect between persons residing within the city or village limits and those who, though living outside of such limits, are within the post-office delivery.

Had this court the power to change the law it might be worth considering whether it would not be well to provide that all notices might be served through the post-office. But were any change in that direction contemplated certainly no one would think of excluding from its operation only those who from the contiguity of their residence to the post-office as well as from the nature of their business pursuits, are the most unlikely to be incommoded by such change. Those inhabitants of a city or village who are at all likely to draw or indorse commercial paper generally keep themselves in daily intercourse with the post-office, and when not absent from home would nearly always receive a notice posted to them at their own post-office the same or the next day. But this cannot be said of those who live in the country. They as a rule seldom go to the post-office oftener than once a week to receive their weekly newspaper, or less often, as called for by the needs of family cor

Forbes v. National Bank of Omaha.

respondence. Persons thus situated would not generally receive a notice of protest through the post-office in time to answer the purposes for which notices are required, to wit: to give the indorser or drawer a fair start with others in pursuit of the property of a defaulting principal. Again, the inhabitants of cities and villages who draw or indorse commercial paper are as a rule business men, who do it as a part of their regular business, and carefully note and watch the dates of the maturity of such paper, and whether or not it is duly honored. While many farmers and other inhabitants of the country are in the habit of becoming accommodation indorsers for business men, they keep no dates, but rely confidently on their principal to protect their paper. To such, a prompt and certain notice of dishonor often may save them from ruin.

It is true that the rule is well settled that where the person entitled to notice resides so far away from the place of dishonor that his place of residence is nearer to another post-office, or where he habitually resorts to another post-office for mail matter, then notice may be sent to him by mail. This arises from the nature and necessities of the case; and besides, it is a fair presumption, where a person draws or indorses commercial paper payable at a distant bank or place, that he thereby impliedly agrees to receive notice of its dishonor through the post-office, the usual channel of communication between distant points. But not so an indorser of paper payable at a bank situated within his own post-office delivery.

In most of the cases where the courts have come to a conclusion different from that which I have been able to reach in the examination of this question, they give as a controlling reason for such conclusion that to require personal notice or its equivalent to indorsers residing outside of the limits of cities and villages would be to lay an additional burden upon the holder. I am unable to accord much weight to this reason. Notaries' fees for protest and notice, including mileage, follow the protested paper; and the costs of sending a notary or special messenger to serve a notice anywhere within the delivery of any post-office in the settled portion of the country would be but trifling compared to the amount generally involved, and I think it affords a fair application of the maxim, de minimis non curat lex.

As to the point that although the plaintiff in error may not have been legally notified, he afterward waived such notice, I have only to say that no such waiver was found by the District Court,

Delany v. Errickson.

and had it been I do not think that there was sufficient evidence to have sustained it.

The judgment of the District Court is therefore reversed and a new trial ordered

Reversed and remanded.

NOTE BY THE REPORTER.—In addition to the authorities cited in the opinion in support of this ruling, may be cited Farmers' Bank v. Battle, 4 Humph. 86; Barker v. Hall, Martin & Yerg. 183: Patrick v. Beasley, 6 How. (Miss.) 609. The contrary is maintained in Bank of Columbia v. Lawrence, 1 Pet. 578; Walker v Bank of Augusta, 3 Ga. 488; Bank of U. S. v. Norwood, 1 Harr. & J. 423; Gist v. Lybrand, 3 Ohio, 307; Carson v. Bank of Alabama, 4 Ala. 148; Jones v. Lewis, 8 W. & S. 14; Timms v. Delisle, 5 Blackf. 477; Foster v. Smeath, 2 Rich 338; Walker v. Bank of Missouri, 8 Mo. 904; Bondurant v. Everett, 1 Metc. (Ky.) 658. Mr. Daniel says: The mere fact that he would get the letter out of the same office it was put in, instead of a distant one, should not vitiate the method of communication, every reason of convenience and certainty which applies in one case, applying with equal force in the other." "The opposite view is severe and technical, and does not rest, that we perceive, upon any principle of convenience, utility, or justice." Dan. on Neg. Inst., § 1015. See, also, Bank of Columbia v. Lawrence; Bigelow's Bills and Notes, 323, and note, $37. Parsons says (Notes and Bills, 434), "The true test would then seem to be only the fact whether the holder and the party to whom the notice is to be sent reside in the town. or not." Louisiana State Bank v. Rowell, cited in the principal case, and its doctrine seems now to be overruled in Louisiana. Bk. of Louisiana v. Tourrillon, 9 La. Ann. 132.

DELANY V. ERRICKSON.

(10 Neb. 492.)

Evidence-letter-press copies.

Letter-press copies of private writings are not admissible as original evidence.*

A

CTION of trespass. The opinion states the point. The plaint iff had judgment below,

E. F. Gray and W. H. Munger, for plaintiff in error.

G. L. Loomis and N. H. Bell, for defendant in error.

COBB, J. [Omitting other matters.] The only remaining point which I deem it necessary to examine is that arising upon the objection, on the part of the plaintiff in error, to the admission in evidence of a letter-press copy of a letter written by G. W. E. Dorsey to E. B. Young, without first accounting for the original. I

• See Eborn v. Zimpleman (47 Tex. 503), 26 Am. Rep. 819.

Sioux City and Pacific Railroad Co. v. First National Bank of Fremont,

know of no law or authority taking letter-press copies of private papers out of the general rule, which prohibits that character of secondary evidence, except in certain cases of necessity, arising upon the loss or accidental destruction of the originals. But on the contrary, in the only adjudicated case which I am able to find bearing directly on the point (Foot v. Bentley, 44 N. Y., 170; s. c., 4 Am. Rep. 652) the Commission by GRAY, C., say: "We are of opinion that they (letter-press copies of letters) were not in any sense original papers, and were in their character copies to the same extent that other copies carefully compared would have been, neither of which could be read in evidence without first giving notice to produce the originals." And this I think to be the law.

It therefore follows that the judgment of the District Court must be reversed, and the cause remanded for further proceedings according to law.

Reversed and remanded.

SIOUX CITY AND PACIFIC RAILROAD Co. v. FIRST NATIONAL BANK OF FREMONT.

(10 Neb. 556.)

Bill of lading-by agent - estoppel of principal by.

A railroad company is estopped as against a bona fide purchaser, to deny a bill of lading issued by its authorized agent, although the goods were not received by the company.*

A

CTION on bills of lading pledged by the consignor as security for annexed drafts drawn by him upon the consignee, and discounted by the plaintiff. The opinion states the other facts. The plaintiff had judgment below.

Joy & Wright, and N. H. Bell, for plaintiff in error.

Marlow & Munger and Marshall & Sterret, for defendant in error. MAXWELL, C. J. [Omitting statement.] It will be seen that the object of the action is to hold the railroad company liable on

*See Witzler v. Collins, ante, p. 827.

Sioux City and Pacific Railroad Co. v. First National Bank of Fremont. two bills of lading executed by its station agent to one Watkins, one of said bills being dated November 13, 1877, for two cars of wheat, and the other dated November 15, 1877, for three cars of wheat, which bills of lading were transferred to the bank, the bank advancing $1,500 on them, relying on the statements therein contained that Watkins had shipped five full cars of wheat, when in fact the cars mentioned in the first receipt contained about one-half a carload of wheat and about one-half a carload of barley, and the three cars mentioned in the second receipt were never in fact shipped, and no wheat was in fact received by the railroad company at the time the receipt was given. Is the company liable under such circumstances upon the bills of lading? In the case of Grant v. Norway, 2 Eng. Law and Eq. 337, it was held that the master of a ship has no general authority to sign a bill of lading for goods which are not put on board the vessel; and consequently the owners of the ship are not responsible to parties taking a bill of lading which has been signed by the master without receiving the goods on board. This case was decided in the Common Pleas in 1851. No authorities are cited by the court to sustain its position, the court saying: "There is but little to be found in the books on this subject; it was discussed in the case of Berkley v. Watling, 7 Ad. & El. 29; but that case was decided on another point, although LITTLEDALE, J., said in his opinion the bill of lading was not conclusive under similar circumstances on the ship owner." This decision was followed in Hubbersty v. Ward, 18 id. 551, in the Court of Exchequer, POLLOCK, C. B., placing the decision upon a lack of power in the master. See, also, Coleman v. Riches, 29 id. 329. These decisions were followed by the Supreme Court of the United States in the case of the Schooner Freeman v. Buckingham, 18 How. 182. In that case the claimant, being the sole owner of the schooner named, contracted with one John Holmes to sell it to him for the sum of $10,000, payable by installments at different dates. By the terms of the contract John Holmes was to take possession of the vessel, and if he should make all the agreed payments, the claimant was to convey to him. The vessel was delivered to Holmes under this contract and he had paid one installment, the only one which had become due. Holmes permitted his son, Sylvanus Holmes, to have the entire control and management of the vessel and to appoint the master. Syivanus Holmes transacted business under the style of S. Holmes & Co., and the flour mentioned in the bills of lading as VOL. XXXV-62