Plahto's Administrator v. Patchin

26 Mo. 389 | Mo. | 1858

Richardson, Judge,

delivered the opinion of the court.

The engagement of the endorser to pay a negotiable promissory note is not absolute like that of the maker, but is conditional ; and if the holder intends to charge the endorser it is his duty to make a demand of payment on the maker at the maturity of the note unless there exists some legal excuse for omitting it. The note was dated at St. Louis, and the presumption ordinarily would be indulged that the makers resided there, but this presumption was repelled in this case by the testimony that the plaintiff, when he received the note on the day of its date, knew that the makers resided in Franklin county, and the notary, on the day he protested it, was informed, both by the plaintiff and defendant, that the makers did not reside in St. Louis. The plaintiff in the first instance received the note the day it was executed, and as between him and the defendant, who was the immediate endorser, the latter had a right to require that the note should be presented for payment to the makers. If the plaintiff transferred the note to Page & Bacon too late to have a due presentment made, he could not complain of their omission to present it; but the defendant, having transferred it long enough to have a proper presentment made, had a right to stand on the terms of his original undertaking against every person who subsequently received it.

The law does not require any thing unreasonable of the holder to ascertain the residence or place of business of the maker, but due diligence is required; and if the maker has absconded or is concealed or can not be found after due inquiries, or if he has removed to another state or country since the note was given, the holder will be relieved from the necessity of any other efforts to make a presentment. (Story Prom. Notes, § 264.) What will be considered proper diligence on the part of the holder in making inquiries to ascertain the residence or place of business of the maker is not susceptible of a definite rule and must depend on the circumstances of each particular case. The finding of the court shows that the plaintiff knew all the time where the makers resided, and that the notary was told that they did not reside in St. Louis. If it was not the duty of the plaintiff, when he transferred the note to Page & Bacon, to inform them where the note should be presented for payment, it was at least his duty to have informed the notaiy when asked if the makers resided in St. Louis.

The deposition was properly admitted, for it was certainly competent to prove where the makers resided or had their place of business.

The finding of the court on the question of diligence was sustained by the evidence and the judgment will be affirmed.

The other judges concur.