Pier v. Heinrichoffen

• Decision Date: 31 March 1873
• Citation: 52 Mo. 333
• Parties: DELOS D. PIER, et al., Appellants, v. WILLIAM HEINRICHOFFEN, et al., Respondents.
• Court: Missouri Supreme Court

52 Mo. 333

DELOS D. PIER, et al., Appellants,

v.WILLIAM HEINRICHOFFEN, et al., Respondents.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Fisher & Rowell, for Appellants.

“An averment in the usual form, alleging due presentment, and notice, is sustained by proof of any state of facts showing an excuse according to the custom of merchants.” (Greenl., Ev. Vol. 2, 197; Norton vs. Lewis, 2 Conn., 478; Hopkins vs. Liswell, 12 Mass. 52; Williams vs. Mathews, 3 Cowen, 252; Windham Bank vs. Norton, et als., 22 Conn., 219.)

The rejection of any material testimony by the court, entitles the party to then take his non-suit, and this court will not refuse to set it aside because the record does not show, that plaintiff could make the other points in his case, or that he was prepared with proof on the other points. (Dowd vs. Winters 20 Mo. 361.)

Slayback & Haeussler, for Respondents.

EWING, Judge, delivered the opinion of the court.

This is an action on a promissory note by the plaintiffs as indorsees against defendants as indorsers, payable at the office of Williams, in St. Paul, Minnesota; the note bears date St. Louis, October 12, 1860, and is payable on the first day of July thereafter, (1861.) The petition contains the usual averments of presentment and demand of payment at the maturity of said note, refusal to pay, protest of the same, and that defendants were duly notified thereof. The answer of defendants is a denial of the allegations of the petition. Plaintiffs made application for a continuance of the cause, on the ground of the absence of witnesses, who resided at St. Paul, by whom they expected to prove facts excusing the delay in making demand of payment, and in giving notice to the defendants. The motion for a continuance being overruled, and the cause being submitted to the court,--jury waived,--the plaintiffs read the note in evidence, and then offered to show by the certificates of protest of one Malmros, a notary public, and his deposition accompanying the same, that said note was presented for payment at the place where the same was made payable, that it was protested, and notice given the defendants on the 15th day of July, 1861. This evidence was excluded on the objection of defendants, whereupon plaintiffs took a non-suit, with leave, &c. The motion to set aside the non-suit being overruled, the cause is brought to this court by appeal.

The application for a continuance was obviously without merit. The suit was instituted in March, 1870. Immediately thereafter, as the affidavit states, steps were taken to procure the deposition of Terry, a witness residing at St. Paul, which failed, as is alleged, by reason of his temporary absence at Washington City. He remained absent however, until January, 1871, and it does not appear, that any further effort was made to take the deposition in the interim, a period of eight or nine months.

A second attempt was made it seems in 1871 (but at what time is not disclosed) with a like result. So that during a period of about nineteen months the failure to procure the testi mony of a witness, whose residence was so well known, is utterly irreconcilable with that degree of diligence, that should be exacted of suitors under such circumstances.

The certificate of protest and the deposition of the notary were properly excluded. The note matured July, 1861. The evidence offered showed, that demand of payment was not made until July 15, some fifteen days after its maturity, and no reason or excuse was shown for this delay, nor was there an offer to make any such proof.

The order in which evidence may be introduced is a matter very much in the discretion of the court, and this discretion may be properly exercised by inverting the regular order, and admitting evidence that pre-supposes facts, which logically and naturally precede it, but when such evidence is offered abstractly without an offer to sustain it by proof of such antecedent or primary facts, and without which it would be wholly unavailing, and no intimation of such a purpose is given to the court, we cannot say the court erred in excluding it.

This evidence however was rightly excluded on more substantial grounds. The petition avers that demand of payment was made at the maturity of the note, and that defendant was duly...