Gilchrist v. Donnell

• Decision Date: 31 October 1873
• Citation: 53 Mo. 591
• Parties: RICHARD GILCHRIST, Appellant, v. E. F. & F. L. DONNELL, Respondents.
• Court: Missouri Supreme Court

53 Mo. 591

RICHARD GILCHRIST, Appellant,

v.E. F. & F. L. DONNELL, Respondents.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Jefferson Circuit Court.

Henry F. Ahlvers, for Appellant.

I. When a note is made payable at a particular place, presentment at that place for payment is sufficient. (Glasgow vs. Pratte, 8 Mo., 336; Lawrence vs. Dobyns, 30 Mo., 196.)

II. The notary used due diligence. (Sto. Prom. Notes, (4th Ed.,) 437, § 344.)

The notary swears in his deposition, that he first inquired at the Central Savings Bank, the holder of the note, of the cashier thereof, as to the places of residence or business of respondents, and could not ascertain them; that thereupon, he inquired at the place of business of a firm, which indorsed said note to said bank, of the person in charge of said business, and could not ascertain from him such places of residence or business of respondents; that thereupon, he examined the City Directory of St. Louis, for the year when protest was made, and was unable to find the places of residence or business of the respondents. Did the law require more than this, of the notary under the circumstances? Was the notary under legal obligation to go into Illinois for the purpose of inquiring of an indorser, to learn where respondents had their places of residence or business? It has been frequently decided, that where an indorser lives outside of the limits of the city, where protest is made, service of notice may be made upon him through the mail. (Bank of the State vs. Vaughan, 36 Mo., 90; Barret vs. Evans, 28 Mo., 331.)

III. The holder of the note is not required to see that notice actually reaches the indorser. (Sanderson vs. Reinstadler, 31 Mo., 483.)

IV. The plaintiff makes out a prima facie case by proving notice by letter, addressed to the defendant at the town generally. (2 Greenl. Ev., (9th Ed.,) 203, § 188, n. 3.)

J. J. Williams, for Respondents.

I. There are but two methods of serving notice of dishonor on an indorser, to-wit: by personal delivery, when he resides or does business in the same town or city where the protest is made; or by special messenger or letter, addressed to him at his nearest post-office, or that at which he usually receives his letters, if he resides elsewhere. But to put the notice in the city post-office of a large city, to be distributed directly from that office, without going into the mail, when the indorser lives in a different and distant county, as was the case here, is entirely without precedent or authority. (Chitty Bills, 288; Edw. Bills and Notes, 601, 602, 603.)

II. If actual notice is not given in the manner required by law, it must appear that due exertions were made to ascertain the necessary facts to enable the notary to give it. (Edw. Bills and Notes, 609, 610, 611; Dickens vs. Beal, 10 Pet., 572.) The evidence utterly fails to show any such exertions

ADAMS, Judge, delivered the opinion of the court.

This was an action on a negotiable promissory note by the plaintiff as indorsee, against the defendants as prior indorsers. The note was payable at the Central Savings Bank of St. Louis, Missouri, and was duly protested at maturity. The defense relied on, and the only issue tried was, that the defendants were not duly served with notice of demand and protest. The evidence conduced to show, that they resided in Jefferson County. The notary, who protested the note, testified, that he did not know where the defendants resided; that on the day of the protest, he inquired of the bank officers and also at the place of business of a firm, who had indorsed the note, and could learn nothing about their residence.

He also examined the City Directory of St. Louis, and did not find the...