60 OR 7 - Price v. Warner

¶1 *10Decided October 10, 1911.

¶2On the Merits.

¶4Statement by

Mr. Justice McBride.

¶5This is an action by J. L. Price against A. L. Warner, A. L. Clearwater and S. A. Jefferson. The facts are as follows:

¶6Defendant Clearwater was the indorser of a promissory note executed by Albert Warner. It was duly presented for payment and dishonored. The note was payable in Salem, where defendant resided. The person giving the notice of dishonor also resided in Salem. The day subsequent to the presentation of the note for payment, plaintiff’s agent called at defendant’s place of business for the purpose of giving him notice of the dishonor of the note, and found that he was temporarily absent from the city. He repeated his visits for four or five days, and on each day found him still absent. After-wards he saw him and gave him notice. Section 5929, L. O. L., is as follows:

“The notice may be in writing, or merely oral, and may be giving in any terms which sufficiently identify the instrument and indicate that it has been dishonored by nonacceptance or nonpayment. It may in all cases be given by delivering it personally or through the ' mails.”

Section 5936, reads:

“Where the person giving 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 person 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.”

For appellant there was a brief over the names of Mr. John H. McNary, Mr. Charles L. McNary and Mr. Walter C. Winslow, with an oral argument by Mr. Charles L. McNary.For respondent there was a brief with oral arguments by Mr. Walter E. Keyes and Mr. Samuel T. Richardson.

Section 5946 reads:

“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 ceas°« to operate, notice must be given with reasonable diligence.”

¶7At the conclusion of plaintiff’s testimony, the court, on motion of defendant, granted a nonsuit, and plaintiff appeals. Affirmed.

Mr. Justice McBride

¶8delivered the opinion of the court.

¶93. Taken in connection with the other sections of the statute quoted above, the word “may” in Section 5929 should be construed to mean “must.” The conjunction “or” indicates the alternative and is equivalent to “neither” as if to say, “either one thing or another thing” must be done. Sheppard v. City of New Orleans, 51 La. Ann. 847 (25 South 542). Plaintiff was required by Section 5936, L. O. L., to give notice the day follow'ing the dishonor of the note, -either by mail or personally, unless the delay were excused by the contingency mentioned in Section 5946. The law does not excuse a delay caused by the impossibility of giving notice in a particular manner, but only excuses a delay caused by the impracticability of giving notice at all.

¶10In this case a notice sent through the mail would have fulfilled every demand of the statute. The plaintiff asks that the delay be excused not because circumstances beyond his control rendered it impracticable to give *12notice sooner, but because he was unable to give it sooner in the manner attempted.

¶11The judgment of the circuit court is affirmed.

¶12. Affirmed.