78 Mo. 13 (Mo. 1883), First Nat. Bank of Burlington v. Hatch

Citation:78 Mo. 13
Opinion Judge:MARTIN, C.
Attorney:Shanklin, Low & McDougal for plaintiff in error. W. C. Samuel and George W. Warder for defendant in error.
Judge Panel:PHILIPS, C., concurs; WINSLOW, C., absent.
Court:Supreme Court of Missouri

Page 13

78 Mo. 13 (Mo. 1883)




Supreme Court of Missouri.

April Term, 1883

         Error to Livingston Circuit Court. --HON. E. J. BROADDUS, Judge.


         Shanklin, Low & McDougal for plaintiff in error.

         The notice of presentment and protest was sufficient. It was not necessary that the notice should be in writing. Story on Bills of Exchange, (3 Ed.) p. 367, § 300; 2 Daniel Negotiable Inst., (2 Ed.) p. 30, § 972; Glasgow v. Pratte, 8 Mo. 336; Linville v. Welch, 29 Mo. 203. After the bill was presented and protested for non-acceptance, the promise of defendant to pay it, with a knowledge of all the facts, such promise to pay is a waiver of all informalities as to giving notice. Story on Bills, (2 Ed.) p. 332, §§ 280, 320, 373; 2 Daniel Neg. Inst., § 1147; Harness v. Daviess Co. Savings Ass'n, 46 Mo. 357; Salisbury v. Renick, 44 Mo. 554; Clayton v. Phipps, 14 Mo. 399; Dorsey v. Watson, 14 Mo. 59; Wilson v. Huston, 13 Mo. 146; Mense v. Osbern, 5 Mo. 544; Sigerson v. Mathews, 20 How. 498; Thornton v. Wynn, 12 Wheat. 184; Reynolds v. Douglass, 12 Pet. 497; Faulkner v. Faulkner, 73 Mo. 327.

         W. C. Samuel and George W. Warder for defendant in error.

         Allegation of demand for acceptance and certificate of presentment for acceptance insufficient. Daniel Neg. Inst., §§ 462, 654, 950, 953; Edwards Bills, (2 Ed.) top p. 477; Musson v. Lake, 4 How. 262; Smith v. Gibbs, 10 Miss. (2 Sm. & Mar.) 479; Fall River Bank v. Willard, 5 Met. 216; Mitchell v. DeGrand, 1 Mason (U. S. C. C.) 176; Price v. McClare, 3 Abb. Pr. 253; Robinson v. Johnson, 1 Mo. 435; Draper v. Clemens, 4 Mo. 52; Nave v. Richardson, 36 Mo. 133; Chitty on Bills, 260 note; Ib., 402. The drawee cannot waive due diligence in presentment. Pierce v. Whiting, 29 Me. 188; Ex parte Bigold, 2 Mont. & A. 633; Lee Bank v. Spencer, 6 Met. 308; Dan. Neg. Inst., § 1109; May v. Boisseau, 8 Leigh 164; Posey v. Decatur Bank, 12 Ala. 815. Evidence of waiver of notice must be pleaded. Lumber?? v. Palmer, 29 Iowa 104; Cole v. Wintercost, 12 Texas 118; Garvey v. Fowler, 2 Sand. 665; Shultz v. Dupuy, 3 Abb. Pr. 252; Pier v. Heinrichoffen, 52 Mo. 333; Hall v. Davis, 41 Ga. 614; Burgh v. Legge, 5 Mees. & W. 418; Edwards Bills, *636. Promise to pay must be made after full knowledge of the facts showing him not legally bound to pay. Dorsey v. Watson, 14 Mo. 59; Clayton v. Phipps, 14 Mo. 399; Salisbury v. Renick, 44 Mo. 554; Arnold v. Dresser, 90 Mass. (8 Allen) 436; Low v. Howard, 11 Cush. 268; Kelley v. Brown, 5 Gray 108; Ballin v. Betcke, 11 Iowa 204; Ault v. Sloan, 4 Iowa 504; 2 Greenleaf Ev., (Red. Ed.) § 190, and cases cited, n. 1; Bank v. Baldwin, 17 N.J.L. 487; Edwards v. Tandy, 36 N.H. 540; Freeman v. O'Brien, 38 Iowa 406; Lilly v. Petteway, 73 N.C. 358; Campbell v. Barney, 11 Iowa 43; Trimble v. Thorn, 16 Johns. 152. Promise must be explicit and unequivocal. Tardy v. Boyd, 26 Gratt. 631; Allen v. Harrah, 30 Iowa 363; Creamer v. Perry, 17 Pick. 332; Thornton v. Wynn, 12 Wheat. 183; Story on Bills, § 321. Notice of dishonor should be sent on the day after protest. 1 Parsons Notes and Bills, 511, note l??; 3 Kent, (12 Ed.) 106, note d; Bank v. Orris, 40 Iowa 332; Grant v. Strutzel, 6 N.W. 119; Griffith v. Assmann, 48 Mo. 66; Bank v. Taylor, 34 N.Y. 128, and cases cited. Want of funds by drawee does not excuse presentment as against the indorser. Ramdulollday v. Darieux, 4 Wash. C. C. 61; Ralston v. Bullits, 3 Bibb 261; Scarborough v. Harris, 1 Bay 178. Notice must come from one entitled to demand payment. Parsons Neg. Inst., §§ 972, 1083; Juniata Bank v. Hale, 16 S. & R. 157; Magruder v. Union Bank, 3 Pet. (U. S.) 87; Staunton v. Blossom, 14 Mass. 116.

         MARTIN, C.

          The plaintiff brought suit on the 14th day of September, 1878, against the defendant as the indorser of a foreign bill of exchange drawn on the 25th day of May, 1873, by the Burlington & Southwestern Railway Company on Elijah Smith, the financial agent of the company at Boston, payable, in the sum of $5,000, forty days after date. The bill was indorsed by the defendant to the plaintiff, for the sum of $5,000, which was paid at the time of the indorsement and delivery to plaintiff. The petition is in the usual form describing the making, indorsement and delivery of the bill before maturity. The petition contains the averment that " said bill of exchange was subsequently, on the 30th day of May, 1873, presented to the said Elijah Smith at his office in the Sears building in Boston, Massachusetts, for acceptance, and was by him then and there declined and refused acceptance and not accepted, and said bill of exchange was, on that day, duly protested for non-acceptance, of all which said defendant Henry Hatch had due notice." The answer consisted of a general denial. The case was tried by the court without a jury.

         The plaintiff submitted in evidence the bill of exchange and the indorsements thereon, and the certificate of the notary relating to the dishonor of the paper and notice of that fact to the defendant. The certificate of the notary in Boston under his hand and seal, was as follows: " On this 30th day of May, in the year of our Lord, 1873, I, Albert W. Adams, notary public, duly commissioned and sworn, in and for the county of Suffolk, and practicing in the city of Boston, at the request of C. F. Smith, Esq., cashier of the Continental National Bank of Boston, went with the original bill, a copy...

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