Davis v. Francisco

• Decision Date: 31 July 1848
• Citation: 11 Mo. 572
• Parties: DAVIS v. FRANCISCO.
• Court: Missouri Supreme Court

11 Mo. 572

DAVIS

v.FRANCISCO.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM SALINE CIRCUIT COURT.

CHILTON & BRYAN, for Appellant.

HAYDEN, for Appellee.

1. Considering the note in the light of an ordinary note, not negotiable, there is evidence in the cause sufficient to show that a suit against the maker would have been unavailing--and in fact, that the necessary diligence was used under all the circumstances, on the part of the plaintiff, to recover the debt sud for. Pococko v. Blount, 6 Mo. R. 338. 2. But considering the note as a negotiable note, then all the proof, with reference to the insolvency of the maker of , or with reference to the diligence used to collect the debt by the plaintiff of the maker of the note, was wholly unnecersary; and as the bill of exceptions taken and filed in the cause does not show that the evidence therein preserved was and is all the evidence which was given in the cause, the court will presume, in the absence of proof to the contrary, that the note was duly presented for payment to the maker, and that the defendant was duly notified by Francisco of the non-payment thereof. 3. The Circuit Court decided correctly, not only in permitting the said Francisco, upon the trial of the cause, to prove the time at which said note was indorsed to him by Davis, but also in refusing to give the first instruction to the jury which was moved for by the defendant.

NAPTON, J.

This was a suit originally brought before a justice of the peace upon the following instrument:--“63 85.--One day after date, I promise to pay Th. W. Davis or order $63 85, for value received, to bear ten per cent. interest from this date until paid, negotiable and payable without defalcation or discount. September 2, 1844. SAMUEL MILLER. [Seal]” Upon this note was the following indorsement: “I assign the within note to A. M. Francisco. January 22, 1845. TH. W. DAVIS.”

On the trial in the Circuit Court, where the case had been taken by appeal, it appeared in evidence that this note had been in the possession of Francisco some six or ten months before the indorsement was made, and that the indorsement was ante-dated so as to correspond with the period when Francisco first got possession of the note. It appeared that when this note was indorsed, Miller, the maker, was dead, and his estate totally insolvent. His property was all covered by executions, deeds of trust and other specific liens, and was insufficient to satisfy these liens by about three thousand dollars. Suit was brought against Miller's estate in the County Court immediately after the actual indorsement; but nothing was recovered. It also appeared that Francisco had paid full value for the note.

Instructions were given by the court, which are not preserved in the bill of exceptions. The two instructions which are copied on the record relate to the admissibility of evidence to show the actual date of the indorsement, and the proofs of insolvency. No objection was made to the instruction on the question of insolvency. The verdict and judgment were for the plaintiff

The conduct of the parties to this note, before it was put in suit, and the phraseology of the instructions at the trial, seem to show that the note was treated throughout as an ordinary note, not negotiable. The note was payable to the payee “o order,” and could not be transferred by delivery.^(a) The indorsement by Davis was made some fifteen months after the note was due, and after Miller, the maker, was dead and his estate insolvent.

There is no doubt that demand of payment and notice of non-payment are necessary to hold the indorser of a negotiable note responsible.^(b) It is well settled, that the insolvency, absence from the State, and perhaps even the bankruptcy of the maker, will not dispense with the necessity of such proof. Even the knowledge by the indorsee of the maker's insolvency at the time of the indorsement, has not been considered as sufficient to exempt the holder from the duty of demand and notice. The reason of the rule is, that, notwithstanding the insolvency of the maker, some portion of the note may still be collected, and if no portion...