78 Mo. 13 | Mo. | 1883
The plaintiff brought suit on the 14th day of September, 1878, against the defendant as the indorser of a foreign bill of exchange drawn on the 25th day of May, 1873, by the Burlington & Southwestern Railway Company on Elijah Smith, the financial agent of the company at Boston, payable, in the sum of $5,000, forty days after date. The bill was indorsed by the defendant to the plaintiff, for the sum of $5,000, which was paid at the time of the indorsement and delivery to plaintiff. The petition is in the usual form describing the making, indorsement and delivery of the bill before maturity. The petition contains the averment that “ said bill of exchange was subsequently, on the 30th day of May, 1873, presented to the said Elijah Smith at his office in the Soars building in Boston, Massachusetts, for acceptance, and was by him then and there declined and refused acceptance and not accepted, and said bill of exchange was, on that day, duly protested for non-acceptance, of all which said defendant Henry Hatch had due notice.” The answer consisted of a general denial. The case was tried by the court without a jury.
The plaintiff submitted in evidence the bill of exchange and the indorsements thereon, and the certificate of the notary .relating to the dishonor of the paper and notice of
The record recites that this certificate was, on objection of defendant, excluded as evidence of notice of protest, but was read as evidence of protest for non-acceptance.
Lyman Cook, president of plaintiff, testified among other things, that defendant was at the bank two or three timos a week; that he kept his account there, and witness talked with him about the draft; that immediately after the protest witness went down to defendant’s office and payment was promised, and defendant admitted his liability.
Q. What protest was it you notified Mr. Hatch and the rest of the indorsers of ? A. When the notary first protested the draft. I don’t know as it was protested but once. I think there was but one protest about it. I forget whether it was at sight or not. I notified them of the first protest that came.
Mr. Lauman testified to conversations with defendant-tending to establish an acknowledgment of his liability after the protest.
The defendant was called by the plaintiff, and testified : “ I don’t know that I ever received any notice of the dishonor of this draft. I do not remember now whether I did or not/and can’t say.” He testified that he was in the plaintiff’s bank nearly every day and talked with the president and cashier about the draft. He continues: “ I cannot say that they notified me that it had been protested for non-acceptance; but they talked with me about it, áild we knew it had not been accepted, and Smith would not pay it. They might have told me it had been presented and not accepted, and protested, about the time it occurred, but I do not now remember. I should not think it strange if I did receive notice of protest for non-acceptance, because I received so many notices of failure to accept about the time of Smith’s failure, but can’t say positively as to this bill.” Again, “ Mr. Elijah Smith having failed, notices of protest rained all around.” He testified that he expected the draft would be paid when it was drawn and indorsed, but that he knew it would be dishonored before it was protested ; that he had heard of Smith’s failure, and that Smith had telegraphed him that he would accept no more bills.
The defendant offered no evidence. The case was submitted and taken under advisement, the plaintiff having asked the court to give the following declarations of law:
1. If the court, sitting as a jury, believes from the evidence that Henry Hatch, the defendant, indorsed the
2. To fix the liability of defendant, it is not absolutely necessary that he should have written notice of the presentment and protest of the draft in suit. It is sufficient if he has had verbal notice thereof from plaintiff or its officers; therefore, if the court finds from the evidence that defendant had verbal notice from the plaintiff or its officer, within a reasonable time after the presentment and protest of said draft for non-acceptance, the court sitting as a jury ought to find for the plaintiff.
3. If the defendant had either written or verbal notice •of the presentment and protest of the draft in suit for nonacceptance, the finding ought to be for the plaintiff.
4. If defendant acknowledged his liability to plaintiff .after the presentment and protest of said draft, such acknowledgment of liability is a waiver of notice of protest for non-acceptance.
5. The possession of the draft by plaintiff is prima facie evidence that plaintiff' is the holder for value and the owner thereof.
These declarations were all refused by the court, and judgment was rendered for the defendant, who asked no instructions. The grounds upon which the court was persuaded to render this judgment may reasonably be presumed to be the same which are submitted to us by the defendant for the purpose of sustaining it, and which I will now briefly consider.
I. It is contended by defendant that the petition fails to contain any averment of demand of acceptance of the draft, and that consequently no proof of such fact can be noticed by the court in deciding the issues before it. I
The allegations in this petition are in strict conformity with the forms which have been in use in England for about fifty years, having been adopted by rule of court. In the first American edition of Mr. Chitty’s work on Bills, published in 1834, his form of a declaration by an indorsee against the indorser of a bill of exchange for non acceptance, after reciting the execution, indorsement and delivery of the bill to plaintiff, continued as follows : “And the same was then and there presented to the said G. H. for acceptance, and the said G. H. then and there refused to accept the same, of all which the defendant then and there hal due notice.” Chitty on Bills, (1 Am. Ed.) 82; Chitty on
The cases cited by the counsel for defendant in support of their position do not relate to the sufficiency of pleadings, but to the sufficiency and fullness of proofs — another subject entirely.
II. The conclusion we have reached about the sufficiency of the pleading in respect of demand for acceptance, disposes of the objection of defendant to a want of proof on this point. The objection is not that there was no recital of demand in the certificate, but that in legal contemplation, there was no proof in the case, because there was no allegation of demand in the petition.
III. The notarial certificate recites that the notary “ went with the original bill * * and demanded acceptance thereof of the drawee, * * and he answered, ‘ I decline accepting.’ ” The counsel for defendant, in a brief of great learning and ability, contend that this notarial certificate is defective in failing to state that the bill was exhibited or produced when acceptance was requested. I do not propose to review the many authorities submitted by them in support of this proposition. I have examined them, and will state the reasons why.I cannot regard them as impeaching the validity of the certificate. 1st, Nearly all of them relate to presentment for payment and not for acceptance; “ The duty of a holder in presenting a draft for acceptance manifestly is not governed by rules or rather circumstances so urgent as those that attend the presentment
IY. The certificate of the notary, being under seal, was evidence of presentment, refusal and protest. Such was its import under the law merchant, and it is so recognized in this state by statutory enactment. 2 Wag. Stat. 1872, p. 218. When the certificate also recites notice of dishonor to the parties, it is evidence of that fact as well-as the fact of
V. Notice of dishonor is not required to be in writing. Linville v. Welch, 29 Mo. 203. Neither does it, under the law merchant, belong exclusively to the duties of the notary The owner or holder of the paper is the proper person to give it.
The court erred in refusing the first, second and fifth declarations of law asked by plaintiff. They are correct, and there was abundance of evidence to justify and support a finding for plaintiff on the issue of notice had by defendant of the dishonor of the draft. The president of the bank testified that he notified the indorsers of the first protest that came; that he told the defendant the same day the notice came, that the draft was protested. This is repeated in his testimony. This communication must have been made immediately after the protest. The defendant’s admission to the effect that “ they might have told me it had been presented and not accepted and protested, about the time it occurred, but I do not now remember,” goes strongly to support the receipt of notice, especially when taken in connection with his admission of liability. Again he says, “ I should not think it strange if I did receive notice of protest for non-acceptance.” I think the evidence is pretty convincing that when the shower of notices took place on the failure of the drawee, one of them must have fallen on the defendant ; also that he received verbal notice from the president and cashier of the plaintiff.
No particular form of words is necessary in the notice. A notice to the indorser that the bill has been protested for non-acceptance is sufficient. This implies dishonor. Mills v. Bank U. S., 11 Wheat. 431. Notice of “protest” of a bill of exchange in common acceptance implies presentment and dishonor. 2 Daniel Neg. Inst., § 983; 2 Edwards Bills and Notes, (3 Ed.) § 806.
The position of the indorsers on this bill indicates that they were successive and not co-sureties. A proper notice, therefore, to any one of them, is sufficient to hold him. Stix v. Mathews, 63 Mo. 371.
For the reasons I have given the judgment of the circuit court is reversed and the case is remanded for re-trial.