Bank of Missouri v. Vaughan
| Decision Date | 31 July 1865 |
| Citation | 36 Mo. 90 |
| Parties | BANK OF THE STATE OF MISSOURI, Respondent, v. JAMES VAUGHAN, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court.
Ewing & Muir, for respondent.
I. The notary's protest is evidence of a demand and refusal to pay a bill of exchange at the time and manner stated on such protest. (R. C. 1855, § 20, p. 298.)
II. The notice given to the endorser and drawer was legal and proper. (Sto. Prom. No. § 301; 3 Kent, Com. 139-40.)
III. The certificate of the notary and his affidavit are evidence of the lacts therein stated and the manner of said acts. (R. C. 1855, p. 733, § 57.)
IV. There is manifestly nothing, it is submitted, in the point as to a va ance between the petition and the bill read in evidence. The abbreiations of themselves clearly enough express their own meaning, when he whole instrument is considered. But there is an averment as to the meaning and sense of these words, by the allegation that the bill was “duly presented at the Bank of the State of Missouri at St. Louis--the place designated in said bill for payment-- to the teller,” &c. And there is no denial of these averments, or that, in promising to pay at the “Bk. of Mo. at St. Louis,” defendants did not thereby promse to pay at the Bank of the State of Missouri.
The certificate is full, and contains all the facts necessary for it to set orth, under the statute, to make a good notice.
It is good independent of Danforth's testimony; but there was no objection to his (Danforth's) testimony because it contradicted the protest. But if there is any variance, it is cured by verdict. (R. C. 1855, p. 1256-7.)
Lindenbower & Sherwood, for appellants.
The court should not have permitted the certificate of protest of the notary to be offered in evidence; the certificate is only of such facts as it may lawfully contain. The certificate in this case did not set forth such facts as are required by law to be set forth--R. C. 1855, p. 733, § 57; that section requires that notice of dishonor, given to the “parties thereto,” be set forth in the certificate. From all that appears by the statement of the notary, notice was given to “a mere stranger.” The certificate of protest of a notary, prior to the above statute, was not evidence of the dishonor of inland bills of exchange, and that act, consequently, should be strictly construed as being in derogation of the common-law merchant.
The court erred in permitting the introduction of Danforth's statement regarding the depositing by him of the notice in the post-office, because he was neither a holder of, nor a party to, the bill; nor entitled to call for payment, nor re-imbursement. (Chauvine v. Fowler, 3 Wend. 173; Bay. on Bills, 248; 8 Mo. 336; 18 John. 327; Sto. on Bills, 454, § 388, ex parte Barclay; 7 Vt. 597.) There was no agency or authority on the part of Danforth shown. ( Ib.)
The bill of exchange should not have been admitted; it was not such a one as plaintiff had declared upon. There is no rule better established than that “the evidence must correspond with the allegation and be confined to the point in issue.” The allegation was the execution of a bill of exchange, payable at the Bank of the State of Missouri; the issue was whether such a bill had been executed. The affirmative of that issue, that the appellants had executed such a bill, was not supported by a bill payable at “the Bk. of Mo.” The proper basis was not laid for the introduction of the bill in evidence even had it been otherwise admissible.
This was an action upon a bill of exchange, of which Vaughan was the drawer, Jabez Owen (deceased) the acceptor, and W. H. Barden the endorser. The cause was tried in the Greene Circuit Court, and a judgment rendered for the plaintiff, to reverse which the defendants appeal to this court.
Two grounds are relied on to reverse the judgment of the Circuit Court; first, a variance between the bill declared on and the one offered in evidence; and, second, because due notice was not given to the drawer and endorsers of the presentation and non-payment of the bill. These objections will be considered in their regular order.
The petition states that
The defendants' answer denies the execution of the bill of exchange described in the petition; but admits the execution of a bill of exchange such as described in the petition, except that the same was made payable at the “Bk. of Mo. at St. Louis,” and not payable at “the Bank of the State of Missouri.” The answer also denies that the bill was duly presented for payment and the defendants duly notified thereof.
I am unable to see any variance between the instrument declared on and the one offered in evidence. The petition says that the bill was presented at “the Bank of the State of Missouri at St. Louis, the place designated in the bill;” the bill says it is payable at “the Bk. of Mo. at St. Louis.” This would seem to be a sufficient averment of what the abbreviations “Bk. of Mo.” meant. It would, perhaps, have been better if the petition had contained an averment showing what the abbreviations meant, but it does not appear that any...
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