Bateson v. Clark

• Decision Date: 31 October 1865
• Citation: Bateson v. Clark, 37 Mo. 31 (Mo. 1865)
• Parties: ALEXANDER BATESON, Respondent, v. HENRY L. CLARK et als., Appellants.
• Court: Missouri Supreme Court

37 Mo. 31

ALEXANDER BATESON, Respondent,

v.HENRY L. CLARK et als., Appellants.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Court of Common Pleas.

Kehr, for appellants.

1. The petition wholly fails to state a cause of action against the appellants. If they are to be held as endorsers of a negotiable note, the petition should allege that the note endorsed by them was “for value received, negotiable and payable without defalcation.” Or if they are held as assignors of a non-negotiable note, the petition should state facts constituting their liabilities as such. Neither being done, the petition is wholly defective, and states no cause for action on which a judgment if rendered could be sustained. (Jaccard v. Anderson, 32 Mo. 188; Parsons v. Lindsay, 34 Mo. 422.)

II. If it be objected that this point not having been raised below cannot be made here, I reply “that for error apparent on the face of the record this court will reverse the judgment of an inferior court although no exception be taken therein.”

1. The objection that the petition does not state facts sufficient to constitute a cause of action is never waived. (R. C. 1855, p. 1231, § 10, & p. 1301, § 35.)

The distinctions between exceptions taken at the trial and errors manifest on the record is palpable, and has always been recognized by the Supreme Court of this State, as well as by the appellate courts of other States.

It will be found upon examination that all the Missouri cases in which it is held “that a party will not be allowed to urge in the Supreme Court a point that was not made in the Circuit Court,” have referred without exception to matters arising upon the trial, and not to such as affect the pleadings or record. Vide Alexander v. Hayden, 2 Mo. 211; Thomas v. Erskine, 7 Mo. 213; Cornelius v. Grant, 8 Mo. 59; Floresch v. Bank of Mo., 10 Mo. 515; whereas in Carr v. Edwards, 1 Mo. 137; Hempstead v. Stone, 2 Mo. 65; Hayton v. Hope, 3 Mo. 54; Maupin v. Triplett, 5 Mo. 422; West v. Miles. 9 Mo., 167, it has been uniformly held that for error apparent on the face of the record the Supreme Court will reverse the judgment of an inferior court although no exceptions be taken therein.

An objection to an indictment may be raised in the Supreme Court although not made in the Circuit Court. (McWalters v. State, 10 Mo. 168.)

In McGee v. State, 10 Mo. 495, it is held that whatever may be taken advantage of in arrest of judgment, may be corrected by writ of error.

The judgment in Fox v. Tooke et al., 34 Mo. 509, was reversed by the Supreme Court upon a point not made in the court below. (Slocum v. Pomeroy, 6 Cranch, 221.

III. The mere fact that the notary went with the note to the maker's place of business and found no one there to answer his demand for payment, did not dispense with the necessity of any further effort to present the note. (Sto. on Prom. Notes, § 238; Collins v. Balles, 2 Str. 1087; Lanusse v. Massicot, 3 Martin, La. 261; Granite Bank v. Ayers, 16 Pick. 392; McGruder v. Bank of Wash'n, 9 Wheat.; Chit. on Bills, 7th ed., 164-246.)

IV. The evidence that the notary went with the note to the place of business of the maker in order to demand the payment thereof, and found no one there to answer respecting the same, does not sustain the allegation of the petition that the note was presented to the maker. Where facts are relied on as dispensing with actual presentment and demand, the facts constituting the legal equivalent should be stated in the petition. (Byles on Bills, 171, 337; Blakey v. Grant, 6 Mass. 386; Hill v. Varrell, 3 Greenl. 233.)

Farish, for respondent.

I. The instructions were properly refused; a demand at the place of business of the maker of a note is sufficient; and it is not necessary that the maker of the note should also be sought at his residence. (Sto. on Prom. Notes, § 235; Draper v. Clemens. 4 Mo. 52; Barrett v. Evans, 28 Mo. 231; Sanderson v. Reinstadler, 31 Mo. 483; Kleinman v. Boernstein 32 Mo. 313; McKee v. Boswell, 33 Mo. 567; Miltenberger v. Spalding, 33 Mo. 421.)

II. The point in regard to the insufficiency of the petition was not raised below by demurrer, answer, or motion in arrest, and cannot arise here. It is not assigned here as error. (Haskell v. Sullivan, 31 Mo. 436; Richardson v. George, 34 Mo. 105.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit brought by the endorsee of a negotiable promissory note against the maker and endorsers. The first objection urged is that the demand of payment made by the notary of Clark, the maker, at his place of business, and during his absence, was insufficient to charge the endorsers; and that Clark having a known residence in the city, the demand should have been made there also.

The evidence in the case shows that Clark, the maker of the note, was a man of family, and that he resided with his family in the city of St. Louis, at the corner of Eighteenth and Locust streets, and that he had a place of business on Chesnut street between Second and Third. The notary testified that he presented the note at his place of business for payment, but did not find him or any one else there to answer the demand for payment, and that on the same day he gave notice of protest.

It clearly appears from the evidence that the place where the presentment was made was the maker's regular place of business, and where such is the fact a presentment and demand at that place, as well as a presentment and demand at his abode or residence, is good in law. Indeed, Parsons says, “it is clear that a demand at the place of business without any at the place of abode is sufficient, and this ordinarily would be the safest and most proper place to present the note.” (1 Pars. on Notes and Bills, 422.)

In Van Vechten v. Pruyn (3 Kernan, 549), Comstock, J., said that the true rule was that when the service was not by mail, notice may be left indifferently at the dwelling or place of business.

But it is further objected that the petition is defective and does not state facts sufficient to constitute a cause of action. This objection was not raised in the court below, and no exceptions were taken, and it is insisted on here for the first time....