Dorsey v. Watson

• Decision Date: 31 March 1851
• Citation: 14 Mo. 59
• Parties: DORSEY v. WATSON.
• Court: Missouri Supreme Court

14 Mo. 59

DORSEY

v.WATSON.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST. LOUIS CIRCUIT COURT.

The plaintiff instituted suit against defendant, in the St. Louis Circuit Court, on a bill of exchange, drawn by a firm of which the defendant was a member on the 10th June, 1829, in favor of the plaintiff, and upon one Townsend, at St. Louis, payable in 40 days at the discount and deposit office of the United States Bank. It was proved by a notary that at the request of the cashier of the bank at St. Louis, he presented the bill for payment, and that payment being refused, the bill was protested; and that notices were made out and handed to the cashier at St. Louis to be forwarded to Cincinnati, to be sent to the parties to the bill.

It was also proved by a witness who was a clerk of the plaintiff at that time living and doing business in Cincinnati, that the plaintiff, who was the payee of the bill, had the same discounted at the branch of the United States Bank in Cincinnati, and that it was forwarded to the office at St. Louis for collection, and was returned protested for non-acceptance and non-payment. The plaintiff received due notice of the dishoner of the bill, and caused it to be taken up. Witness removed to St. Louis, and brought the bill with him for collection, at the request of plaintiff. Witness had heard that defendant had resided in the State, but was unable to find him. In the spring of 1843, witness presented the bill to defendant in Pittsfield, Ill., where he was residing. The defendant stated that it was a valid and genuine paper, and a just debt, but he thought he had paid it; but if he had paid it, he had a receipt, and would look for it; and if he could not find it he would pay the debt, as it was just; and requested time to look for his receipts. In the fall of the same year, and in spring of 1844, witness inquired of defendant if he had found his receipts. Defendant had not found them, and said that he thought he had paid it, and if he could not find his receipts, he would pay the amount, for it was a genuine paper and valid claim, and a just debt originally. When the writ was served in this cause, defendant (Watson) offered to pay the principal of said debt, if plaintiff would give up the claim. In this state of the case, the plaintiff asked the court to declare the law to be; 1st, that the promise to pay the bill, made by the defendant, Watson, to Swearingen; the agent of the plaintiff, after the dishonor of the bill, raises a legal presumption that said Watson had received due notice of said dishonor. 2nd, that said promise to pay, made long after said dishonor, dispenses with the necessity of any proof that said Watson had received notice of the protest for non-payment.

COALTER, WELLS & BUCKNER, for Plaintiff. 1st. The only question presented by the record in this cause, is that growing out of the refusal of the court to give the instructions prayed for by the plaintiff and appellant. We submit that the court erred in not giving these instructions, and in not granting a new trial. A promise to pay after a dishonor, is a waiver of the laches of the holder. Chitty on Bills, 533-534. 2nd. The law presumes, that the party entitled to notice would not make the promise unless all the circumstances had concurred to subject him to liability. Chitty on Bills, 535; 7 East, 231.3 rd: If this presumption arises where an absolute promise is made to pay, it is equally strong when the promise is qualified or conditional. In this case the defendant promises to pay, if he cannot find his receipt for payment already made. He in effect waives his legal rights, by putting his defense on other grounds than want of notice of dishonor--that is, upon his having a receipt for payment heretofore made. He does not rely upon the want of notice, but by his promise to pay, or by his having heretofore paid (as he supposed) he admits his liability. The law presumes that notice was duly given, from the fact that he promised to pay. Chitty on Bills, 535; 2 Camp. 188; 4 Camp. 52. Wood v. Brown, 4 Starkie, Chitty on Bills, 540; 6 Mo. R. 487. 4th. The promise made by the defendant (though qualified in its terms) in effect was absolute and positive. The promise was to pay, if he could not find a receipt. He had eighteen months to look for his receipt, and the fair inference is that he could not find it, and never had one. Mense v. Osborne, 5 Mo. R. 546; Fletcher v. Froggart, 2 Car. & Payne, 569; Chitty on Bills, 540. 5th. The question whether the action is barred by time, does not arise. There is nothing upon the record, showing that the defendant relied upon the statute of limitations for his defense. No instructions were asked to that effect, nor any instruction given that he relied upon the statute of limitations. The court will not plead the statute for a party. He must do so himself if he desires to take advantage of it. Even under the statutory plea the defendant should be requested to apprise the court and opposite party of his intention to rely upon it.

GAMBLE & BATES, for Defendant. For defendant it is insisted: 1st. That he was entitled to notice of the protest of the bill, and was not notified. The only testimony on that subject is that of Mr. McGunnegle (the notary who protested the bill) and that does not prove notice. 2nd. There is no proof of waiver of notice. The only testimony is that of Swearingen, and that does not amount to any proof of waiver. He presented the bill to Watson in 1843, who said that the transaction out of which the bill grew was a fair one. That he had paid the debt, and thought he had a receipt for it, and that if he could not find a receipt he would pay it. This neither admits notice nor waive the receipt of it. The plaintiff in error relies upon a case in 5 Mo. R. 541, Mense v. Osborne. But this does not decide the question what is and what is not a waiver of notice. The court below had instructed the jury that a promise by defendant to pay as soon as he could collect money was a promise, and not a conditional promise; and this court refused to reverse for that cause--assuming no doubt that the unconditional promise to pay was binding without any reference to the question of notice, as in that case there was a good consideration to support the promise. The question, whether a notice is waived, is not a question of law but a question of fact for the jury. 7 Peters, 287, Union R. R. of Georgetown v. Magruder. Here the court acted as a jury, and as such found that there was no waiver. 3rd. The suit was barred by statute of limitations. This is undeniable from the date of the bill, 1829, unless the right of action be...