Cromer v. Platt

• Decision Date: 20 June 1877
• Court: Michigan Supreme Court
• Parties: Van Rensselaer Cromer v. George W. Platt and Edmund F. Platt

37 Mich. 132

Van Rensselaer Cromer v. George W. Platt and Edmund F. Platt

Supreme Court of Michigan

June 20, 1877

Argued April 18, 1877

Error to Berrien. (Coolidge, J.)

Assumpsit against the endorser of a promissory note. On failure to find the maker, the holders sent to the endorser the following letter: "St. Joseph. Mich., February 4, 1873. Mr Cromer--Dear Sir: We hold a note given by Thos. A. Bunbury dated St. Joseph, July 1st, 1872, payable seven months after date to your order, for one hundred and fifty dollars with interest at ten per cent. The note being endorsed by you, and not paid at this date, we look to you for payment of the same. Yours resply, Platt & Brother." The following letters from the endorser were admitted in evidence under objection: "March 18th, 1873. Mr. Platt: I received your letter. I was in hopes that Mr. Bunbury had settled it up before this. I would like to have you write to him about it and see what he says. He is able to pay, and think he will. V. R. Cromer." "April 30, 1873. Mr. Platt: Your letter is at hand requesting me to pay that note immediately as Mr. Bunbury has run away. I did not expect to have that note to pay, as Mr. Bunbury was able to pay it, and I have made use of the money I brought with me. Therefore it is impossible for me to pay it at present. V. R. Cromer." The court below tried the case without a jury and gave judgment for the plaintiffs, and defendant brought error. Reversed.

Judgment affirmed, with costs.

Wm. R. Lyon and E. Bacon, for plaintiff in error. To charge an endorser demand must be made from the maker at maturity, and notice of dishonor given to the endorser. May v. Coffin 4 Mass. 341; Pierce v. Cate 12 Cush. 190; Wheeler v. Field 6 Metc. 290. The notice must cover the facts of presentment and demand, and the refusal to pay, and must distinctly show that the note is dishonored. Platt v. Drake 1 Doug. (Mich.) 301; Cicotte v. Morse 8 Mich. 428; Spies v. Newberry 2 Doug. (Mich.) 426; Pinkham v. Macy 9 Metc. 174; Townsend v. Lorain Bank 2 Ohio St. 355; Story on Prom. Notes, §§ 348, 350; Redf. & Big. Leading Cases on Bills and Notes, 358-375; Edwards on Bills §§ 470-1; Strange v. Price 10 Ad. & E. 125; 1 Pars. on Notes & Bills 470; Artisans' Bank v. Backus 36 N.Y. 100; Nailor v. Bowie 3 Md. 251; Reynolds v. Appleman 41 Md. 615; Routh v. Robertson 11 Sm. & M. 382; Pahquioque Bank v. Martin 11 Abb. Pr. 291; Hartley v. Case 4 B. & C. 339; Solarte v. Palmer 1 Bing. N. C. 194. If the maker has absconded, the notice must show it. Gilbert v. Dennis 3 Metc. 498-9. In case of a note payable generally, simple notice of nonpayment is not notice of dishonor. Edw. on Bills 593; Dole v. Gold 5 Barb. 490.

N. A. Hamilton and O. W. Coolidge for defendants in error. A notice that states the fact of non-payment and that the holder looks to the endorser, is sufficient (Mills v. Bank 11 Wheat. 431) or that puts the party on inquiry. Chewning v. Gatewood 5 How. (Miss.) 552; Field v. Thornton 1 Ga. 306. It need not set forth that a demand has been made or that the maker has absconded. Burkam v. Trowbridge 9 Mich. 209; Clark v. Eldridge 13 Metc. 96; Robson v. Curlewis 2 Ad. & El. [N. S.] 421; Hedger v. Steavenson 2 M. & W. 799; Grugeon v. Smith 6 Ad. & El. 499; Redf. & Big. Leading Cases on Bills & Notes 358, and cases cited; Paul v. Joel 4 H. & N. 355; Bailey v. Porter 14 M. & W. 44. The authority of Solarte v. Palmer is shaken by Everard v. Watson 1 El. & Bl. 801. Cromer's letters were a waiver of notice and recognition of liability. Parsons v. Dickinson 23 Mich. 56.

Campbell, J. Cooley, C. J. and Marston, J. concurred. Graves, J. (dissenting.)

OPINION

Campbell, J.

This was a suit against an endorser, and his liability, upon the facts found, depended on the sufficiency of the notice of dishonor, inasmuch as the letters relied on as recognitions of liability are equivocal and not enough to indicate any promise to pay.

The notice was full in every other respect except as to the fact of demand and refusal. As to these it simply declared that the note was unpaid, and the holders looked to the endorser for payment.

This left the facts of presentment and refusal to inference. The question is whether a notice of this kind is valid.

There are cases both numerous and respectable which have held such a notice insufficient. No particular form of notice can be laid down as requisite, and the discussion has always been concerning the sufficiency in each case to inform the endorser of what was claimed as fixing his liability.

We think that altogether too much force has been given to technical phrases in such notices. A notice, whatever be its form, cannot bind unless the paper has been legally dishonored, and every endorser must be presumed to know what action will bind him and what will not. Notice need not be given by a notary. Any holder may give it for himself and in his own language. Negotiable paper is used by all classes of men and for all manner of purposes, and in a large class, if not in the majority of cases, credit is given to the endorser and he knows it. He is entitled to have his liability established by the necessary measures. But there is no reason why courts should strain matters, as they often have done, to discharge persons from liability when they have not been misled in any way by the notices sent them. As a matter of fact every endorser who receives a notice of non-payment, and that he is looked to for payment, knows that such a notice would not have been sent unless it was supposed the proper steps had been taken to charge him. He learns this as well from one form of notice as from another, and when courts have theorized upon the forms of notice, and assumed that endorsers scan with the nicety of advocates every phrase and turn of expression, they assume what is not true in fact, and impose upon negotiable paper what seem to be unreasonable restrictions. The value of such a medium of business convenience is injured by every needless technicality, and honest holders of such paper, who have not read the law reports, are practically defrauded.

We think the notice in the present case was sufficient. The early case of Platt v. Drake 1 Doug. (Mich.) 301, was overruled in Burkam v. Trowbridge 9 Mich. 209, where we remarked upon the danger of over technical refinements in these matters. The more liberal doctrine seems to us the correct one. And while no doubt many cases, and possibly a majority of those reported hold otherwise, we do not think the popular usage has been changed by them, or that justice would be furthered by such a change.

The judgment must be affirmed, with costs.

Cooley, C. J. and Marston, J. concurred.

DISSENT BY: Graves

DISSENT

Graves J. (dissenting.)

Defendants in error as holders sued the plaintiff in error as endorser of a promissory note dated St. Joseph, July 1st, 1872, made by Thomas A. Bunbury for $ 150 and payable seven months after date, with interest at ten per cent.

The circuit judge tried the cause without a jury and made a special finding of facts and gave judgment thereon in favor of defendants in error.

The plaintiff in error complains of a ruling in admitting evidence, and also insists that the facts found do not support the judgment. The point upon the introduction of evidence does not appear to be valid.

The situation of the case made it proper to ascertain whether upon all the correspondence, Cromer had not obviated his objection that the notice to him was insufficient and as a consequence had rendered the objection and the grounds of it immaterial. Third National Bank of Boston v. Ashworth 105 Mass. 503, and cases cited. The item of proof objected to was a proper one in that connection.

The point of importance in the cause, as the record is now framed by the shape of the finding, relates to the sufficiency of the notice found to have been given to Cromer.

There is no finding that Cromer waived any right or excused the taking of any step by law necessary to fix his liability as endorser, and the judgment against him rests upon the facts as found in regard to what things were done to bind him.

The finding states that when the note became due the defendants in error proceeded to the last place of residence of Bunbury, the maker, to demand payment, but that Bunbury had absconded and could not be found, and that on the 4th of February, 1873, they notified Cromer, who was stopping in a foreign State, that they held the note, that it had not been paid, and that they looked to him for the payment of the same. The note was payable generally and not at a bank or other specific place, and Cromer insists that the notice found to have been given to him was not sufficient to charge him. It is material to bear in mind that the question here is not upon the sufficiency of the facts preceding notice and on which the notice must rest, but it is upon the sufficiency of the notice itself. However clear it may be that the requisite circumstances existed to enable defendants in error to fix Cromer with liability through a proper notice, still, the existence of such circumstances could have no force to effectuate the result unless proper notice is found to have been given. Grant that the finding shows the note was dishonored, Cromer's liability is not made out at all unless it is found that he was notified of the dishonor. And no particular form of words is necessary to constitute a good notice. But it should be so worded as according to common understanding to convey the idea that the note has been dishonored and that the party addressed is to be held for payment. Broom's Com. 469, 470.

In case there is no dispute about facts the sufficiency of the notice is a question of law, and that as far as practicable the...