50 Md. 18 | Md. | 1878
delivered the opinion of the Court.
Jas. E. Purvis and Jas. F. Purvis, Jr., on the 3rd April, 1867, conveyed all their property to Orville Horwitz, in trust for the payment of their debts, as individuals or partners, according to their respective priorities.
Their creditors having been notified to file their claims, the Howard Bank, the appellant, filed its claim for certain notes, all of which was allowed, where Jas. F. Purvis was the drawer of the notes.
But upon five notes where he was merely the endorser, objection was made by other creditors, that there had not been the proper proceedings to hold him answerable as endorser.
These five notes consisted—
1st, of a note made by Sinclair & Purvis, dated February 21, 1867, at four months for $800, endorsed by Jas. F. Purvis and Robt. H. Sinclair.
2nd, note of James F. Purvis, Jr., dated 6th December, 1866, payable at four months for $1500, endorsed by Jas. F. Purvis.
3rd, note of Jas. F. Purvis, Jr., dated 12th March, 1867, payable at four months, endorsed by 'Jas. F. Purvis.
4th, note of Jas. F. Purvis, Jr., for $2000, dated 25th March, 1867, payable four months from date, endorsed by Jas. F. Purvis.
Eull proof having been demanded, all other objections to the allowance of these notes have been abandoned, except those before stated.
The objection that Purvis at the time the notes were given and endorsed, was president of the bank, and not authorized to enter into such contract, being in violation of its charter, cannot be maintained since the decision in Lester and Wife vs. Howard Bank, 33 Md., 558, and has not been urged.
The only question, therefore, is, has the commercial law been complied with, to make Purvis, the endorser, answerable for the payment of these notes.
The rule is a strict one, and deemed necessarily so, upon principles of public policy.
The engagment of the endorser is conditional, and any neglect or laches on the part of the holder of the note, in not making due presentment .thereof, or not giving due notice of its non-payment by the drawer, will discharge him. Tate vs. Sullivan, 30 Md., 464; People’s Bank of Baltimore vs. Brooke, 31 Md., 7.
In applying the established law governing in such case to the facts, or developed by the testimony, we find no error in the ruling of the Circuit Court.
Some of these notes were handed to Sangston, and others to Rich, as notaries, to pursue the proper steps to demand payment of the makers, and to give, due notice of their dishonor.
The demand of payment of all of the notes was made, as it appears, at the banking house of Purvis & Co., and the notices of non-payment to the endorser, were there left. This completed the action of the notaries, and this is relied upon, as full compliance with the law, to hold the endorser responsible.
The firm of Purvis & Co. had failed at the time these notices were left at their hanking house.
Mr. Horwitz, the trustee of the concern, had possession and afterwards it was occupied by other parties.
There is no evidence of any further effort being made, to present the notes, to the makers personally, or to give other notice of their non-payment to the endorser.
Purvis, Jr., on the 7th April, 1867, when one of the notes became due, resided in Baltimore, and the note might have been presented to him, at his residence..
The bank evidently relied upon the notaries to take the proper steps to hold the endorser. That would be sufficient, if they had pursued the required course.
Their notarial certificate of protest, &c., only furnishes prima facie evidence of the facts therein stated; but upon the entire evidence, there is an utter failure to show either, that due presentment of the notes was made to the drawer for payment, or due notice given to the endorser, of the failure to pay.
The condition upon which the endorser is responsible, has not been complied with, and he is not bound by his contract to pay the notes.
The order of the Circuit Court must be affirmed.
Order affirmed, and
cause remanded.
