62 Ky. 322 | Ky. Ct. App. | 1864
Lead Opinion
delivered the opinion op the codrt :
These causes having been consolidated by order of court, on the appellant’s motion, there was no error in trying both at the same time, and pronouncing one judgment, had it correctly defined the rights of each party; but it was erroneous to pronounce a joint judgment against Daniel Harmon and Robert Harmon, when each, if liable at all, is liable upon two separate bills of exchange, to one of which Daniel is no party, and to the other Robert is no party; besides, these bills are for different sums.
The bill drawn by Daniel Harmon, dated July 3, 1860, at 90 days, payable to Wilson, Hicks & Kensey, for $5,714 .63, accepted by Wm. M. Harmon, was taken up at maturity by the payees, as evidenced by the following words written across its face: “ Paid by Wilson, Hicks & Kensey.” Plaintiffs do not aver that they immediately notified the drawer of its non-payment by the acceptor, but say they did so in a short time! It is evident, from the nature of the transaction, that this bill was made by Daniel Harmon as an accommodation drawer, known to the drawees; if, indeed, it was not made for their accommodation as well as for that of the acceptor. In such case he was entitled to due notice.
Wm. M. Harmon had arranged with the drawees to advance on two thousand barrels of flour, and they were to have the possession and management and sale of the flour. They expected to be profited by way of storage, commission, &c. This bill was drawn in order to raise the necessary means so to be advanced on the flour; therefore, it is but fair to presume it was drawn as much for their accommodation as that of the acceptor; and this conclusion is greatly fortified by their subsequent conduct; for on the day it fell due, or the next day,
The bill for $1,700, dated January 28, 1861, at 60 days, drawn by Robert Harmon, payable to Wilson, Plicks & Kensey, addressed “To Wm. M. Plarmon, Cincinnati, Ohio,” does not designate the place where drawn; but evidence and circumstances in the case indicate that Robert Harmon was a resident of Kentucky; and as no proof indicates whei’e the bill was drawn, the legal presumption is that it was drawn at the drawee’s residence, and must be regarded as a foreign bill of exchange, being drawn in one State on a person in another State, and the notarial protest is evidence of its dishonor. The notary certifies that he deposited notices addressed to Robert Harmon, Sherburn, Fleming county, Kentucky, in the post-office at Cincinnati, postage paid, the same day of the protest; and other evidence shows that Robert Plarmon got notice of protest, for he spoke of having notice of protest to other persons. That he had due notice of protest and non-payment we think should be regarded as established, prima facie, until rebutted by evidence, which is not done.
Fifty acres of the land purchased by Wilson, Hicks & Kensey from Wm. M. Harmon, having been sold by judgment of court to satisfy a prior lien due by Harmon to the Todds, the value thereof should be deducted from the purchase price, and then a deduction should be made for Mrs. Plarmon’s contingent
Wherefore, the judgment is reversed, with directions to the court below to dismiss the petition against Daniel Harmon absolutely, and for further proceedings against Wm. M. Harmon and Robert Harmon as herein indicated.
Rehearing
To a petition for rehearing filed by L. M. Cox and A. Duvall,
delivered the following response :
As was said in the opinion, the bill of exchange sued on was payable in Cincinnati. The protest of the Ohio notary public, who demanded the payment of the bill, is made part of the petition and filed with it. This protest recites, after protesting for non-payment, that the notary “ notified the drawee and indorsees thereof, by written notice, as follows: Robert Harmon one notice, directed to him at Sherburn, Fleming county, Kentucky, * * * and deposited said notices in the post-office in this city this day, postage paid.”
The only response of Robert Harmon as to notice, is, that “he never had due notice, of any notice at all, of the protest thereof.” This is a mere denial that he ever received the notice, but does not controvert the facts stated by the notary, that he had protested the bill for non-payment, and had that day deposited a written notice thereof in the post-office in Cincinnati, postage paid, addressed to Robert Harmon, Sherburn, Fleming county, Kentucky.
If notice be properly addressed and deposited in the post-
But this is not the onty ground upon which the decision may well be based. The Ohio Legislature has enacted that “ the instrument of protest of the notary public, accompanying any bill of exchange or promissory note, which has been protested for non-acceptance or'non-payment, shall be held and received in all courts of this State as prima facie evidence of the facts therein certified,” subject to be contradicted by other evidence. (Chap. 75, sec. 10, 1 vol. Ohio Rev. Stat., by Suian <f Crutchfield, page 874.)
By section 5, of an act approved January 16, 1864 (Sess. Acts, p. 14), our Legislature enacted “ that when any bill of exchange, or other commercial paper, has heretofore, or shall hereafter, be protested in any other State of these United States, in which it .is made payable, and by the laws of said State the notary public, or other officer legally authorized to protest the same, is required to give or send notice of the dishonor thereof to the parties, or when his certificate, or a copy thereof, that such notices were sent, is evidence thereof in the courts of such State, the same shall be received as evidence in all the courts of this Commonwealth, In all actions on such bills of exchange, and have the same effect as evidence, as is given to such evidence in the courts of such State.”
Although we have found no judicial expounding of the Ohio statute by her courts, yet we cannot doubt, from the general terms used, that the statements that notice was given, and
This is a suit in equity; the protest was referred to as evidence and as a part of the petition. No bill of exceptions were necessary to make it a part of the record, or to show it was regarded as evidence.