Bayless v. Harris
| Citation | 101 S.W. 617,124 Mo.App. 234 |
| Parties | BAYLESS, Appellant, v. HARRIS, Respondent |
| Decision Date | 02 April 1907 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Barry Circuit Court.--Hon. F. C. Johnston, Judge.
AFFIRMED.
Judgment affirmed.
T. D Steele for appellant.
(1) The protesting of a note is the taking of all the necessary steps to fix the liability of the drawer or indorser, upon the dishonor of commercial paper to which he is a party, or in other words, presentment, demand and notice of non-payment. Bank v. Lowe, 47 Mo.App. 151. (2) When Mr. Harris informed Mr. Bayless before the maturity of these notes that he would not pay them, that his indorsement was without recourse, and he denied any liability on that account, then in that case notice was dispensed with and was wholly unnecessary. Anderson v. Long, 1 Mo. 367. The notice of dishonor of a note may be given by any party to the same and may be either verbal or in writing. Glasgow v Pratte, 8 Mo. 336. So the verbal and written notice of Bayless to Harris was all that the law required. Bank v. Hatch, 78 Mo. 13.
George & Landis and Thomas M. Allen for respondent.
(1) Plaintiff's second assignment is not well taken for the reason that the matter attempted to be proven was not admissible under the pleadings. Nichols Shepherd Co. v. Larkin, 79 Mo. 271; Lanitz v. King, 93 Mo. 513; Pier v. Heinrichoffen, 52 Mo. 333; Mohney v. Reed, 40 Mo.App. 99; Ferneaw v. Whitford, 39 Mo.App. 311. (2) The court committed no error in sustaining the introduction of the notary's protest as it clearly showed on its face that it was made on the 27th day of May, 1903, the day following the last day of grace. Draper v. Clemons, 4 Mo. 52; Ivory v. Bank, 36 Mo. 475; Kutz v. Tempel, 48 Mo. 71.
In this action on two promissory notes a verdict was directed for defendant and plaintiff appealed. Both of the notes were dated May 23, 1900, were for $ 250, payable to the order of M. W. Wooten, and were negotiable instruments. The maker was E. A. Marbut. One of the notes was due three years after date and one four years. Both were indorsed before maturity by Wooten to defendant without recourse, and by defendant were indorsed before maturity to Bayless, but not without recourse. The petition is in two paragraphs. In the first paragraph it is averred that when the note counted on fell due, it was presented to Marbut, the maker, for payment, payment refused and thereupon the note was protested and notice of presentment, demand and dishonor duly given to the defendant; whereby he became liable to pay the amount of the note, together with damages for the protest. The second paragraph alleged that at the maturity of the other note, it was duly presented to Marbut and payment demanded and refused; whereupon notice of its dishonor was duly given to defendant Harris. The difference between the paragraphs is that the first avers a protest for non-payment and the other merely a demand and notice of dishonor. There are appropriate allegations regarding the indorsements on the notes. The answer was in two paragraphs, and in effect is that notice of the demand of payment and the dishonor of the notes was not given to defendant. The averments of the petition are material in view of the exceptions taken by the plaintiff. Marbut, the maker of the notes, lived some miles in the country from Cassville, the county seat of Barry county. The notes never were presented to Marbut, at his residence or elsewhere, but were placed by Bayless in the Barry County Bank, an institution in Cassville, and a letter written to Marbut some time before their maturity that they would be...
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