The case was continued for advisement, and the opinion of the Court was subsequently drawn up by
Emeiiy J.'This is an action against the defendant, as indorser of a note made by Philbrook B. Abbott, payable to Daniel Eastman, Jr., or order, dated at Portland, June 1, 1836, for $416,37 in 60 days from date, at either of the banks in Portland or Saco, and interest after. It was indorsed by said Eastman, and by the defendant to the plaintiff. About ten days after the date, it was left by the plaintiff at the Manufacturer's Bank, for discount, but was not discounted, and the plaintiff then left it there for collection, where it remained till November, 1836. Upon the facts proved at the Court of Common Pleas, the Judge being of opinion, that the action was not maintainable, ordered and entered a nonsuit. Against that order and entry, the plaintiff excepted, and the case comes before us on those exceptions. Granting that the holder had *266done sufficient in leaving his note at the Manufacturers' Bank, which seems tacitly to be admitted, though in the exceptions, it does not directly appear to be a bank in Saco, and that what was done there amounted to what was equivalent to a demand on Abbott. City Bank v. Cutter, 3 Pick. 414; Jones v. Fales, 4 Mass. R. 245. The question remains, was there legal notice given to the indorser of the maker’s failing to pay ? It appears, “ that a few days after the note became due, Mr. Abbott came to the bank, inquired for the note, and wanted to renew for part, and was told, that it was the property of the plaintiff.
In the afternoon on the last day of grace on said note, the cashier made out a written notice to the defendant, directed to him, of the non-payment of said note, and requesting payment of him, which notice he either gave to some individual living near said Rice, to give to him, or he put the same in the post-office, he knows not which ; and he does not recollect by whom he sent, if sent by an individual, one or the other he did on the last day of grace, or the day following.” “ The defendant has transacted business at said bank for several years before that time, and has always been notified in that manner. And was well knowing of the practice of making demands, and giving notices at said bank. Many of the persons, if not all, who live in Buxton and Hollis, and who transact business at said bank, have expressed to the cashier, their wish to be notified by sending the demand or notice by some individual, down from their neighborhood, in preference to being sent them by mail, in order to save postage. The cashier did not recollect, whether Abbott or Rice ever expressed such wish, but that had been the practice of said bank in notifying said Abbott and Rice.”
Wherever the indorser may have recourse to the maker, the in-dorser is entitled to strict notice. Warder & al. v. Tucker, 7 Mass. R. 449.
C. J. Marshall says, no principle is better settled in commercial transactions, than that the undertaking of the indorser is conditional. If due dilligence be used to obtain payment from the maker without success, and notice -of non-payment be given to him in time, his undertaking becomes absolute, not otherwise. Magruder v. The Union Bank of Georgetown, 3 Peters, 91.
*267The moaning however of this, is not that it should in all cases be actual notice. Though if a notice actually came to the hand of the indorser in proper time, though the letter containing the notice was not properly directed, or sent by the most expeditious or direct route, it would be good. The fact of notice, and its reception in due time are the only matters material to the indorser of an unpaid note. The holder in legal estimation, gives this strict notice by performing his own duty, by sending notice by a messenger in proper time, or by putting a letter rightly directed to the defendant in the post-office, giving notice of the demand and non-payment by the maker on the last day of grace or the next day. This is legal diligence on the part of the holder, whether the letter come to hand in season or not. When all the facts are ascertained, diligence is a question of law. If the evidence is doubtful ©r contradictory, it is for the jury to decide,
The facts here come all from one witness. And it is attempted to hold the defendant by the proof that the usage of the bank as to the making demand, and giving notice, such as, has been recited, was so well understood by the defendant that he must be presumed to have assented to it, and that he must be bound by it.
The very statement of a practice so loose in relation to subjects of such importance to the well being of a commercial community, cannot fail of exciting attention. The usages of banks upon this matter, which have been adjudicated upon, as having effect to bind its customers, are those as to the time in which demands or notices shall be made, or places at which they should be left by the consent or agreement of those interested. .But it is going far beyond what wo consider has been decided, to hold what has been done here as a compliance with the requisitions of law.
Delivering the letter of notice, to an individual living near, and how near not known, or how long ho had been living near to the defendant, or what his habits of punctuality in delivering letters were, or whether he were friendly or unfriendly to the defendant, whether the defendant ever knew the individual selected, or would in any way adopt him as an agent, all alike unknown, is too uncertain a course, on which to place reliance, without proof that it was rightly left with or for the defendant. Whether too in fact the no*268tice was ever delivered to such an individual, and to whom it was delivered, if it was done, is not recollected by the witness.
If a messenger be selected by the holder of the note, or his agent, that messenger must give the notice personally, or leave it at the indorser’s dwellinghouse, or place of business, unless a different place be appointed by the indorser for that purpose.
Had the notice been placed in the post-office in season, rightly directed to the defendant, as that is a mode of conveyance established by the laws of the land, it would have been sufficient. But it is entirely equivocal whether it was ever placed there. No legal excuse is proved.
Upon such evidence as was produced, we apprehend that the Court of Common Pleas was justified in ordering the nonsuit, and directing the entry as stated in the exceptions. Smith v. Frye, 14 Maine Rep. 457.
Exceptions overruled.