222 Pa. 644 | Pa. | 1909
Opinion by
This is an action of assumpsit by the holder against the indorser of a promissory note. William C. Fishburn made a promissory note, dated November 1, 1905, for $2,000, payable one year after date at the First National Bank of Charleroi, Pa., to the order of John H. Moffitt, the defendant. The note was indorsed and delivered to Zollner, the plaintiff. It was not paid at maturity, and on November 1, 1906, it was presented at the First National Bank of Charleroi for payment which was refused. This action was then brought by Zollner against Moffitt, the indorser.
At the trial the defense was rested on two grounds: (1) The defendant had no notice of dishonor, and (2) he was an indorser for the accommodation of Zollner, the plaintiff.
It is not denied that on maturity of the note, November 1, 1906, it was presented by a notary public for payment at the First National Bank of Charleroi, the place of payment named in the note, and that payment was refused. The defendant, however, denies that he received notice of the dishonor of the note. To establish the fact the plaintiff offered in evidence the certificate of the notary, which is in the usual form and under the hand and seal of the notary. It certifies that the notary presented the note “at the First National Bank of Charleroi, and demanded payment thereof, which was-refused, the answer being 'No attention,’ whereof I duly notified the maker and indorsers.” The defendant testified that he never received any notice of dishonor. He also called the notary who protested
Section 1 of the Act of December 14, 1854, P. L. (1855) 724, 2 Purd. (13th ed.).1511, provides as follows: “The official acts, protests and attestations of all notaries public, certified according to law, under their respective hands and seals of office, in respect to the dishonor of all bills and promissory notes, and of notice to the drawers, acceptors or indorsers thereof, may be received and read in evidence as proof of the facts therein stated, in all suits now pending or hereafter to be brought: Provided, that any party may be permitted to contradict, by other evidence, any such certificate.” This act, as will be observed, makes the certificate of the notary prima facie evidence of the allegations set forth in it. If there is nothing in contradiction, it is conclusive of what it contains. This certificate is in the usual form and the notary certifies that she demanded payment of the note which was refused, “whereof I duly notified the maker and indorsers.” If this certificate was the only evidence on the question of notice, it would be conclusive as to notice having been given to Moffitt, the indorser. The defendant, however, attacks the correctness of the certificate as the act specifically provides he may do, and among other evidence introduced for that purpose was that of the notary, alluded to above, in which she said that she had no present recollection that she sent or gave the notice. She does not deny the genuineness of the certificate of protest and that she gave notice of dishonor as set forth in the certificate; but simply testifies that she had no recollection on the trial of the cause that she sent or gave the notice. We think it was error for the learned court to submit her failure of recollection in sending or giving
Section 96 of the Act of May 16, 1901, P. L. 194, 3 Purd. (13th ed.) 3291, known as the negotiable instruments law, declares as follows: “The notice (of dishonor) may be in writing or merely oral, and may be given in any terms which sufficiently identify the instrument and indicate that it has been dishonored by nonacceptance or nonpayment. It may in all cases be given by delivering it personally or through the mails.” The certificate of protest of the notary in the present case says: “I duly notified the maker and indorsers.” There is nothing in the certificate to indicate how the notice was given, whether it was verbal or in writing. The act permits the notice to be given in either way and declares it to be lawful. Neither is there any
Prior to the enactment of the negotiable instruments law, if notice of protest was sent by a letter, prepaid, properly addressed, and deposited in the post office, there was a presumption that it reached its destination by due course of mail, but
The second and third assignments of error are sustained.
The learned trial judge was in error in affirming the defendant’s third point. He and the learned counsel for the defendant were misled by the syllabus in Marshall v. Sonneman, 216 Pa. 65. The first paragraph of the syllabus is misleading and does not state correctly what was decided in the case. It is quoted from a very old case of this court which is cited in the opinion in Marshall v. Sonneman. That case as well as the other authorities referred to were cited in the opinion to show that mere knowledge by an indorser of nonpayment of a note was not sufficient notice of dishonor. Marshall v. Sonneman was an action by the holder against an indorser, and the defense, as here, was failure to give notice of dishonor. There were two indorsers and in giving notice the notary handed to the defendant the notice intended for the other indorser. The notice in form was sufficient and gave notice to. the indorser to- whom it was addressed of nonpayment “and that the holders look to you for the payment thereof.” The trouble arose from, the fact that the notary delivered to the defendant the notice in
The court was right in holding, as requested in the defendant’s point numbered 3-)-, that the memorandum at the bottom of the certificate of protest that the notary sent a notice of protest was no evidence that “Moffitt ever received that notice.” The memorandum was not a part of the certificate nor was ' it referred to in the certificate. The act of 1854, as we have seen, makes only such official acts of the notary prima facie evidence as are “certified according to law.” As this memorandum was not a part of the certificate nor referred to in it, it was not certified by the notary and hence was not evidence of what it purported to contain. Had it been admitted, however, it would not have added any strength to the plaintiff’s case, as the certificate averred the same fact.
The judgment is reversed with a venire facias de novo.