216 Pa. 65 | Pa. | 1906
Opinion by
This is an action by an inddrsee against an indorser to recover the balance due on a promissory note. One of the defenses interposed at the trial was an alleged failure to give the defendant notice of the dishonor of the note. The. plaintiff proved the execution of the note by the maker and introduced testimony to show that the defendant had indorsed it. A notary public was .then called and he testified that he liad protested the note at maturity for nonpayment and that on the same day he had delivered notices of protest personally to both the plaintiff and the defendant, who were the indorsers. He said he gave but one notice to the defendant. The certificate of protest was offered in evidence, by which it appears that the note was protested on the day it bécame due and that
The defendant denied that he had received notice of the dishonor of the note. He testified that the notary delivered to him an envelope addressed to L. A. Marshall, the plaintiff, which contained the following notice:
“Notice of Protest.
“York, Pa., March 1, 1904.
“ L. A. Marshall.
“ Please take notice that the note of M. Fink for four thousand dollars in favor of A. Sonaman dated York, Pa. Nov. 2, 1903, payable March 1, at L. A. Marshall & Co., Bankers, York, Penna. and by you endorsed, (being due this day, payment having been demanded and refused,) is protested for non-payment, and that the holders look to you for the payment thereof.
“ Respectfully yours,
“ Henry K. Kraber,
“Notary Public.”
The defendant further testified that the notary gave him no other notice, paper or envelope. Pie then offered in evidence the notice which, on objection by the plaintiff, the trial judge excluded, stating the reason for his ruling as follows: “ I think there is sufficient notice there to hold him under the law. If this was addressed through the post office it would not be evidence, because he would not have received it; but it was delivered to him at his place of business and he could not help but have notice. We do not think it shows want of notice, but on the other-hand it shows sufficient notice although it was improperly addressed.” This is the subject of the second assignment of error.
The correctness of the ruling of the learned court depends upon the sufficiency of this notice. If it was sufficient notice to the defendant of the dishonor of the note, he was not injured by the exclusion of the offer. He admits he received the notice from the notary on the day the note was protested. If, however, the notice was insufficient to charge the defendant
If the holder of negotiable paper desires to charge antecedent parties with its payment it is incumbent on him to give them notice of its dishonor. He may notify either or all of the prior indorsers, but he can compel payment only from those who have received notice of the maker’s default. The notice may be either written or verbal, or it may be partly written 'and partly verbal. “All that is necessary,” says the learned author of Byles on Bills, *276, “is to apprise the party liable of the dishonor of the bill in question, and to intimate that he is expected to pay it. And an announcement of the dishonor will (at least if it come from the holder) amount to a sufficient intimation to the indorser that he is liable.” It is sufficient if under ail the circumstances the language of the notice imports that the indorser is looked to for payment, and it would seem not unfair to imply such intention from the very fact of sending notice of dishonor: 7 Cyclopedia of Law and Procedure, 1109. The weight of authority is that a notice of dishonor is sufficient to charge an indorser if it comes from the holder or his agent and notifies the indorser that the
We are of opinion that the written notice which the defendant alleges was delivered to him was not sufficient to charge him with the dishonor of the note. It was in proper form, signed by a notary, and was delivered in due time. But on its i'ace, it clearly discloses the fact that it was not intended for the defendant. It was directed to L. A. Marshall, the plaintiff, and the envelope containing it bore the same address. Marshall, like the defendant, was also an indorser of the note, and if the holder intended to impose liability on him it was necessary that he should have notice of dishonor. It is therefore apparent that this notice was intended for Marshall and was, of course, for the purpose of apprising him of the dishonor
For the reasons above stated, the second assignment of error is sustained, and the judgment is reversed with a venire facias de novo.