Griffith v. Assmann

• Decision Date: 31 March 1871
• Citation: 48 Mo. 66
• Parties: JOHN A. GRIFFITH et al., Respondents, v. GEORGE A. ASSMANN AND JOHN SEVERIN, Appellants.
• Court: Missouri Supreme Court

48 Mo. 66

JOHN A. GRIFFITH et al., Respondents,

v.GEORGE A. ASSMANN AND JOHN SEVERIN, Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Taussig & Kellogg, for appellants.

I. The rule is that when the parties to be charged as indorsers live in the same town or city where the note is made payable, the notice must be given to the party entitled thereto personally, or at his domicile or place of business. (Sto. Prom. Notes, § 312.)

II. The holder, at maturity, having undertaken to notify the defendant, it was its duty to use due diligence. The defendant was clearly discharged as to the holder at maturity, and, being once discharged, cannot be made liable by subsequent proceedings. (Renshaw v. Triplett, 23 Mo. 213; Glasgow v. Copeland, 8 Mo. 268; Gerhardt v. Boatmen's Savings Institution, 38 Mo. 60; Sanderson v. Reinstadler, 31 Mo. 483; Barrett v. Evans, 28 Mo. 331; Plahto v. Patchin, 26 Mo. 389; Fugitt v. Nixon, 44 Mo. 295.)

III. This notice, which was subsequently delivered to Severin, was not given by the plaintiffs in their own names or on their own behalf, but they merely, through their agents, Crews, North & Laurie, delivered to the defendant the notice received from the holder at maturity, thus simply making themselves agents of the original holder. If they had given an independent notice they would at least have brought themselves within the scope of the decision in West River Bank v. Taylor, 34 N. Y. 128, on which plintiffs rely.

IV. The object of the law requiring notice to the indorser within twenty-four hours after dishonor, is to afford him all possible means to protect himself. In the case at bar the indorser, Severin, although living in the same town with the maker and holder, did not receive notice for many days after maturity. If the plaintiff suffered and is injured by the negligence of the holder at maturity, he has a clear and plain remedy against him.

Crews, Letcher & Laurie, for respondents.

I. The whole duty of the holder of a protested bill or note is discharged by his notice to his immediate indorser, and all parties to this bill or note will be charged if they receive notice in due course from their immediate subsequent indorsees. (West River Bank v. Taylor, 34 N. Y. 128; Eagle Bank v. Hathaway, 5 Metc. 212; Colt v. Noble, 5 Mass. 167.) When the last indorse of a dishonored bill receives due notice of the dishonor from the holder, and, with this notice to himself, receives, inclosed in the same letter, notices directed to prior indorsers, the due service of these notices upon such prior indorsers will, it seems, be sufficient to charge them. (Renshaw v. Triplett, 23 Mo. 214.)

II. The only point before the court in the case at bar is, was it incumbent on the notary of the Merchants' Bank of St. Louis to have served the notice on Severin personally, instead of sending Severin's notice with the other notices under one cover to the Lafayette Bank at Cincinnati, the immediate prior indorser of said Merchants' Bank? We regard this as no longer an open question, but as settled conclusively by the authorities above cited and by numerous other cases to which we deem it unnecessary to refer.

BLISS, Judge, delivered the opinion of the court.

Defendant Assmann made his promissory note at three months to the order of Severin, who indorsed the same to the plaintiff, doing business in Cincinnati. The plaintiff indorsed it to the Lafayette National Bank of Cincinnati, who indorsed it for collection to the Merchants' National Bank of St. Louis. Both defendants reside in St. Louis, and at maturity of the note the holder caused the same to be presented at the German Bank of St. Louis, where it was payable; and payment being refused it was regularly protested, and separate notices of protest, addressed to each of the indorsers, were on the same day sent to the Lafayette National Bank, the last indorsers; and the bank, on the day of their receipt, gave to the plaintiff the notices addressed to them and defendant Severin, and the plaintiffs on the same day sent the notice, directed to Severin, to their attorney in St. Louis, who at once delivered it to him. Thus, because the notices were sent through the indorsers--from the later to the earlier--defendant Severin, the first indorser, did not receive the...