Baily v. Bank of Missouri

7 Mo. 467 | Mo. | 1842

Opinion of the Coitrl, delivered by

Tompkins, Judge.

The Bank sued Daniel Bailey, as endorser of a note made to him by William Bailey, and having obtained judgment against bun, be now prosecutes this writ of error to reverse the judgment.

The notary testified, that in due time after the dishonor Protest note in question, he went to an office he understood to be that of William and Daniel Bailey; that he found there William Bailey, the maker of the note) and brother of Daniel Bailey, the defendant; that he served the notice on said William; that upon inquiry for Daniel, William told the witness that it was unnecessary to go after Daniel, the defendant, to servo a notice upon him, as he, Daniel Daily, lived with him, William Bailey, and that the office was the place to leave the notice for the defendant -y and thereupon the witness left the notice for Daniel Bailey with William Bailey.

William Bailey, being first released, was sworn on behalf °f the defendant. • He testified, that the notary left a notice 0f the dishonor of the note with him for the defendant; bu.t , . , that he did not recollect that he told the notary that it was not uecessaiT ''ur bmi to S° aí’tcl' the defendant to serve notice on him ; that the defendant then boarded with the witness > that the defendant was then in the city of St. Louis,. anc[ d0intr business as a carpenter, on his own account, and ° ' had a shop for that purpose ; that he believed he pointed out to ^10 notaiT the shop °f the defendant ; that the defendant had no interest or concern in the office of the witness , that , . , , ,. , , he never gave the notice to the defendant, and does not know that the defendant had any knowledge of the dishonor of the note till two or three weeks afterwards; that it being a delicate m liter, the witness never talked to the defendant about it; the defendant was a mere accommodation endorser. ^

The judgment of the court of common pleas being for the Bank, the defendant, Bailey, moved for a new trial, and his motion was overruled, and the refusal is assigned for error. The notice was clearly insufficient. It should have been either served on the defendant, or have been left at his dwelling house, if he had one, or shop where he was employed in his business, or facts being shown from which it might be inferred he had notice. The maker of the note is probably the last person to whom a notice like this should be given. The judgment is reversed and the cause will be remanded.