Barret v. Evans

• Citation: 28 Mo. 331
• Parties: BARRET, Respondent, v. EVANS, Appellant.
• Decision Date: 31 March 1859
• Court: United States State Supreme Court of Missouri

28 Mo. 331

BARRET, Respondent,

v.EVANS, Appellant.

Supreme Court of Missouri.

March Term, 1859.

1. Where the endorser of a negotiable promissory note resides within the town or city where protest thereof is made, notice of protest must be served upon him personally, or it must be left at his place of abode or of business; if, however, his residence is outside the city limits, though near the same, and though his address is the city post-office, it is sufficient if notice of protest be deposited, directed to him, in the city post-office.

Appeal from St. Louis Court of Common Pleas.

This was an action against defendant as endorser of a promissory note. The defence relied on was that Evans had not received due notice of protest of the note. At the trial it appeared that notice of protest had been given by a letter directed to the defendant Evans and deposited in the St. Louis post-office. Evans at the time of protest lived between two and three miles from the court-house, in St. Louis county, outside the city limits. He had been living at the same place for eighteen years. He was in the habit of getting his letters at the St. Louis post-office. All the other parties to the note lived in the city of St. Louis.

The cause was tried by the court without a jury. The court, at the instance of the plaintiff, gave the following instruction or declaration of law: “If from the evidence the court believe that defendant, at the time the note was protested and notice sent, resided out of the city of St. Louis, but received his letters at the St. Louis post-office, and shall find that the notice of protest and nonpayment was placed in the said post-office directed to defendant at the time and as stated in the protest and certificate of the notary, then the plaintiff is entitled to recover.”

The court refused the following, asked by the defendant: “It being shown that all the parties to the note sued on lived in or near St. Louis, the notice of protest should have been served on defendant personally or left at his residence in order to charge him as endorser; and it was not sufficient to leave a copy of the notice at the St. Louis post-office directed to defendant.”

The court found and rendered judgment for plaintiff.

T. C. Johnson, for plaintiff.

I. The notice was not sufficient to fix the liability of defendant as endorser. He was entitled to personal notice or notice left at his dwelling. Notice through the post-office is not good except where the notice is deposited to be transmitted to another post-office. (4 Hill, 133; 2 Hill, 587; 5 Metc. 352, 492; 3 Harring. 419; 15 Maine, 143; 8 W. & S. 138; 5 Louis. 359; 6 Louis. 506; 5 Mart., N. S., 359.)

Thomas &...