M'Kee v. Boswell

33 Mo. 567 | Mo. | 1863

Bat, Judge,

delivered the opinion of the court.

The first instruction given in behalf of the plaintiff fails to enunciate the law as we understand it. It is true that, if there be no other evidence of the maker’s residence or place of business than the date of the paper, the law presumes that the maker resides, or is engaged in business, where the note is dated; but as stated by Story, (Sto. on Prom. Notes, 230, n. 1,) it is a presumption only, and if the maker resides elsewhere within the State when the note falls due, and that be known to the holder, demand must be made at the maker’s place of residence. Anderson v. Drake, 14 John, 114, was a suit against the endorser of a promissory note, bearing date in the city of New York, but not made payable at any particular place. When the note was made, the maker lived in New York; but before it matured, he removed to Kingston, in the county of Ulster. The plaintiff’s counsel insisted that, as the note was dated in New York, and the parties resided there at the time it was made, it must be presumed, (no particular place being designated for the payment,) that it was payable in New York. But the court held that a demand of the maker personally, or at his residence or place of business in Kingston, was necessary to hold the endorser. C. J. Thompson, who delivered the opinion, said: “ Where a note is not made payable at any particular place, and the maker has a known and permanent residence within the State, the holder is bound to make a demand at such residence, and whoever takes such a note is presumed to have made inquiry for the residence of the maker in order to know where to demand payment, and to assume upon himself all the inconvenience of making such demand, and the risk of the maker removing to any other place before the note falls due.”

The same doctrine was held in Taylor v. Snyder, 3 Denio, 145, and in Fisher v. Evans, 5 Binney, 541, and is fully supported by authority! If this principle is .correct, then the second instruction given for the plaintiff must be erroneous, for it assumes that there was no necessity for the holder to make any inquiry as to whether the defendant had an office or place of business elsewhere than in Pittsburgh. It is also in conflict with the first instruction given for the defendant, which declares that to entitle the plaintiff to recover, he must prove to the satisfaction of the jury that the note was at its maturity presented to the maker, or at the place of business of the maker, for payment, and payment was then and there demanded; amounting to a declaration that the law, in no event, and under no circumstances, excuses a want of presentment or demand — an error so palpable that it must lmve been a mere inadvertency growing out of the hurry and con-' fusion of a nisi prius trial. If the defendant at the maturity of the note had no office or place of business, and no agent at any place, then a presentment was impossible, and the law never imposes an impossibility on any one.

As this case will be remanded for a further trial, we will state what we understand to be the law applicable to it.

1. If, at the maturity of the note, the defendant had no place of business, and no agent to represent it, then a demand was unnecessary to hold the endorser. .

2. If, at the maturity of the note, the defendant had a place of business in Philadelphia, and the agency had ceased to exist in Pittsburgh, and there was no agreement that the note should be payable at Pittsburgh, and the maker had done no act to induce the holder to make the presentment at Pittsburgh, then it was incumbent upon the holder to make the demand at the office in Philadelphia, if, upon reasonable inquiry, he could have ascertained that the defendant had an office in Philadelphia.

3. If it was agreed and understood between both parties that the note was to be paid at the office of the agent in Pittsburgh, and prior to, and at the maturity of the note, such office had ceased to exist, then no demand was necessary, and parol evidence is admissible to prove such agreement or understanding. (1 Pars, on Notes & Bills, 424, 438.)

It is insisted by the respondent that the judgment is for the right party, and therefore should not be disturbed. It is true that there is evidence tending to show that at the maturity of the note the Farmers’ and Mechanics’ Insurance Company had failed and ceased to transact the business contemplated by their charter, but it is not conclusive that they had no place of business, for they may have kept their office open for the purpose of winding up their affairs. It is also true that evidence was introduced tending to show that there was an agreement between the parties that the note should be payable at the office of the agent in Pittsburgh, but we cannot determine the weight or effect to be given to this evidence without encroaching too much upon the province of the jury, who, by law, are made the triers of fact. We therefore deemed it advisable to remand the case, in order that the facts may be ascertained, and the rights of the parties properly adjudged.

Judgment reversed and cause remanded,

the other judges concurring.