17 A.2d 647 | Pa. Super. Ct. | 1940
Argued December 9, 1940. This was an action of assumpsit brought by the holder of a negotiable promissory note against the maker and the indorser, under the Act of May 25, 1933, P.L. 1057, 12 Pa.C.S.A. § 151. Their joinder as defendants in one action did not affect their several rights. Anderson, the maker of the note, made no defense and judgment was entered against him for want of an affidavit of defense; and the case proceeded to trial against the indorser, Bond.
In order to hold the indorser liable it was necessary for the plaintiff to allege (Link v. Bergdoll,
On the trial the court directed a verdict for the plaintiff. Rules were granted on motion of the indorser defendant (1) for a new trial and (2) to show cause why judgment should not be entered in his favor non obstante veredicto, the latter of which the court in banc, three judges concurring, made absolute. The specially presiding trial judge dissented. Plaintiff appealed. The judgment will be affirmed.
The case must turn on the question of notice to the indorser of the nonpayment of the note. The directed verdict in favor of the plaintiff, in any event, cannot stand in the light of the evidence in the case, for even if the plaintiff had produced substantial competent evidence of the giving of such notice to the indorser, it was so weakened by the testimony of the notary himself and by the evidence of the defendant in denial, that it did not warrant binding instructions for the plaintiff; but a careful review of the whole record satisfies us that the plaintiff did not sustain the burden imposed on it of proving that notice of nonpayment in accordance with the Negotiable Instruments Law was given the indorser, and that judgment non obstante veredicto in the latter's favor was rightly entered.
In the first place proof of notice of nonpayment could not be made by offering the several paragraphs of the statement and affidavit of defense, for the plaintiff's statement contained no averment that notice of the nonpayment of the note was duly given the indorser. The eighth averment in the statement, "In giving the defendants notice of dishonor and nonpayment by the maker, the plaintiff was obliged to and did pay the sum of $2.20 as costs," is not a clear and definite averment that notice of dishonor and nonpayment of the note by the maker was given on a certain date, pursuant to the statute, but only an averment that plaintiff was *60
obliged to pay $2.20 as costs, which the last paragraph identified as costs of protest. The certificate of protest was not declared on nor attached to the statement. As pointed out by President Judge FRONEFIELD in his concurring opinion, the Supreme Court has ruled in the cases of Chestnut StreetNational Bank v. Ellis,
In Peale v. Addicks, supra, another action against the indorser of a promissory note, the plaintiff's statement averred, inter alia, "Said note was duly protested for nonpayment, the costs of protest being $1.64", and the plaintiff claimed the face of the note and costs of protest and interest from the date of maturity. In his affidavit of defense the defendant said nothing about not having received notice of nonpayment, but the Supreme Court reversed the judgment entered for want of a sufficient affidavit of defense, saying in part: "It follows, therefore, that in an action against an indorser, the plaintiff's statement under the act of 1887 must contain averments of presentation, demand, notice, etc., necessary to fix the indorser. In the case at bar, the statement contains no such averments. The nearest approach thereto is the following clause, referring to the note in suit: `Said note was duly protested for nonpayment, the costs of protest being $1.64.' This averment is a conclusion of law rather than a statement of facts from which the conclusion may be legitimately drawn. It is, however, a conclusion not predicated — in part even — of notice to the defendant of the dishonor of the note. For aught that is averred the note may have been duly protested, and yet defendant, as indorser thereof, may not have been notified of the demand and the maker's refusal to pay, etc. In no proper sense is it the legal equivalent of a sufficient averment of presentation and demand, at maturity, and notice of nonpayment. In brief, the statement does not present such facts as, if *62 found to be true, would entitle the plaintiff to a verdict."
We recognize that it is not necessary that a promissory note or domestic bill of exchange be protested: Wisner v. First Natl.Bank of Gallitzin,
Over the objection of the defendant, the court admitted the note in evidence. Had it been excluded, the plaintiff might have moved to amend his statement by averring that notice of protest was given the defendant and by attaching the certificate of protest.
In order to prove that notice of nonpayment was given defendant, the plaintiff called Harry H. Bardsley, the notary, as its witness. He produced the certificate of protest, or `manifest' as he called it, and at first testified generally that notice had been sent by mail to the maker, indorser and the bank; but on further examination, he admitted that the notices were not sent out by him personally, but by one of the young ladies who worked in his office, and she was not called to testify. Furthermore, he did not know where the notice to the indorser, this defendant, was sent. Section 108 of the Negotiable Instruments Law provides as follows: "Where a party has added an address to his signature, notice of dishonor must be sent to that address, but *63 if he has not given such address, then the notice must be sent as follows:
"(1) Either to the postoffice nearest to his place of residence, or to the postoffice where he is accustomed to receive his letters; or
"(2) If he live in one place, and have his place of business in another, notice may be sent to either place; or
"(3) If he is sojourning in another place, notice may be sent to the place where he is sojourning.
"But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section."
The notary was not able to say where it was sent for he did not send it; and the certificate or manifest was wholly silent on the matter.
Furthermore, the language of the certificate is peculiar and unusual. After certifying to the presentation of the note at the bank where it was payable, during the usual business hours, demand and refusal of payment — none of which, he testified, on the trial, he had actually done — the `manifest' continued: "Whereupon I, the said Notary, at the request aforesaid, Have Protested and do hereby solemnly Protest against all persons and every party concerned therein, whether as Makers, Drawers, Drawee, Acceptor, Payer, Endorser, Guarantee, Surety, or otherwise howsoever against whom it is proper to protest, for all Exchange, Re-Exchange, Costs, Damages and Interest, suffered or to be suffered for want of Payment thereof: — of which demand and refusal I duly notify the maker and endorsers thereof by mail."
This was not a certificate that he had notified the indorser, as required by law in order to hold him liable; it is in the present tense — "I duly notify" — and signifies an intention to notify in the future, or by the certificate itself, rather than the record of an accomplished fact — *64 something to be done by him, rather than a certificate of what he had done in the matter.
These facts are wholly different from those in the case ofScott v. Brown,
(1) The certificate of the notary in the present case did not contain an averment that he had notified the indorser of the nonpayment of the note.
(2) The notary's clerk did not testify that she had mailed a notice of protest or dishonor to the indorser.
(3) The certificate did not set forth the address of the indorser and the notary testified that he did not know to what address notice was mailed by his clerk.
(4) The defendant in this case did testify and denied that any notice of protest or dishonor had been received by him.
(5) The facts contained in the certificate of protest were not of themselves sufficient to show that any notice of protest or dishonor had been sent to the indorser, or received by him, within the time fixed in the statute.
(6) And the testimony of the notary, so far from supplying the defects in the certificate of protest only *66 established that the notary had no personal knowledge on the subject and his want of knowledge was not supplied by any other witness.
Both the Act of 1815 and the Act of 1854 referred to in the opinion in Scott v. Brown provide that the notary's certificate shall be read and received in all suits in evidence of the facts therein certified; not of facts not certified but attempted to be inferred from those facts. And they contemplate and intend that what the notary certifies to shall have been done by him. And both acts expressly grant permission to any party in said suit to contradict, by other evidence, any such certificate.
Our Supreme Court has held that where the notary's certificate of protest, though not required, contains facts showing that the notary presented the note at maturity at the place where it was made payable and demanded payment, which was refused, and that the notary thereupon notified the indorser personally, or by mail to a named address, of such presentation, demand and nonpayment, the prima facie evidence thus presented is not overcome by a mere denial on the part of the indorser that he received such notice by mail. See the detailed facts set forth in the notary's certificate of protest in First Nat. Bank of Hanover v. Delone,
The certificate of protest in the present case was very like the certificate or manifest in Hart, Secy. of Banking v. Edsall,
We are therefore of opinion that the plaintiff failed to make out a prima facie case showing that notice of the dishonor of the note, in accordance with the statute, had been sent to the defendant indorser; that the certificate *68 of protest did not contain facts sufficient to sustain a finding that such notice had been sent him, and the notary's testimony in court not only failed to show the giving of such notice, but it contradicted any inference of notice to the indorser which the plaintiff sought to draw from the certificate, and established that the notary had not personally sent such a notice, and the clerk whom he had deputed to send it was not called and did not testify that she had done so. The testimony of plaintiff's own witness therefore effectually contradicted any assumption from the certificate that the notary had given notice of dishonor to the defendant. And both the notary and his certificate failed to show to what address any notice of protest to the indorser given by him to his clerk to mail had been sent, if sent it was.
In this view of the case it is not necessary to discuss the interesting question raised by President Judge FRONEFIELD in his concurring opinion.
Judgment affirmed.