Gilchrist v. Donnell

53 Mo. 591 | Mo. | 1873

Adams, Judge,

delivered the opinion of the court.

This was an action on a negotiable promissory note by the plaintiff as indorsee, against the defendants as prior indorsers. The note was payable at the Central Savings Bank of St. Louis, Missouri, and was duly protested at maturity. The defense relied on, and the only issue tried was, that the defendants wore not duly served with notice of demand and protest. The evidence conduced to show, that they resided in Jefferson County. The notary, who protested the note, testified, that he did not know where the defendants resided; that on the day of the protest, he inquired of the bank officers and also at the plaee of business of a firm, who had indorsed the note, and could learn nothing about their residence.

He also examined the City Directory of St. Louis, and did not find the names of the defendants, and thereupon he put the notices in the city post office of the City of St. Louis, directed to the defendants. The plaintiff asked an instruction based upon those facts, to the effect, that if the jury found them to be true, they amounted to reasonable diligence, and entitled him to recover. This instruction was refused, and its refusal raises the only material point discussed here.

Whatever the law may be in regard to the residence of the drawer of a bill, or maker of a note, there is no presumption, that an indorser resides in the town or city where the bill or note is made payable. If such were the case, the notice could •not be served by depositing it in the post office of the city.. If parties reside in the town or city, where demand and protest are made, the rule, as laid down .by this court, is, that the service must be personal, or by leaving it at their usual place of business, or with the family at their domicile. (Barret vs. Evans, 28 Mo., 331.)

The facts relied on do not show reasonable diligence in ascertaining the residence of the defendants. The evidence in the case shows, that the other indorsers could have given the required information, one of whom lived' in East St. Louis, immediately across the river. It was- the duty of the notary to inquire at least of all the parties to the note, if accessible to him, as "to the residence of defendants. He might have prosecuted his inquiries for several days, and the presumption is, if he had done so, he would have been successful. It is only when due search and examination are made for the residence of parties, that a notice of demand and protest is dispensed with. There was no such search made in this case, and putting the notice into the post office, under the circumstances, amounted to nothing. (Story Notes, §§ 316, 335:)

The plaintiff also asked two other instructions, which weré mere abstract propositions of law, and did not touch the question of notice, the only issue tried. For this reason they were properly refused.

The case seems to have been fairly presented by the instruc- • tions given on both sides, and, upon the record as it stands here, the judgment is for the right party.

Judgment affirmed.

The other Judges concur.