Doherty v. First Nat. Bank of Louisville

• Decision Date: 14 June 1916
• Citation: 170 Ky. 810,186 S.W. 937
• Parties: DOHERTY v. FIRST NAT. BANK OF LOUISVILLE.
• Court: Kentucky Court of Appeals

186 S.W. 937

170 Ky. 810

DOHERTY v. FIRST NAT. BANK OF LOUISVILLE.

Court of Appeals of Kentucky.

June 14, 1916

Appeal from Circuit Court, Jefferson County.

Action by the First National Bank of Louisville against Charles J Doherty. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

See also, 166 Ky. 650, 179 S.W. 602.

O'Doherty & Yonts, of Louisville, for appellant

Helm Bruce, Bruce & Bullitt, and Grover G. Sales, all of Louisville, for appellee.

CLAY C.

This is a suit by the First National Bank of Louisville against Charles J. Doherty to recover on two promissory notes for $5,000 each, dated July 11, 1908, payable four months from date, and executed by the Paracamph Company to the order of Charles J. Doherty, C. C. McClarty, and George M. Boone, and indorsed by them to the bank. The first trial resulted in a verdict for the defendant. A new trial was awarded, and on the second trial there was a judgment in favor of plaintiff. The defendant appeals.

1. It is insisted that the trial court erred in granting the new trial. In view of the fact that trial courts are charged with the duty of seeing that trials are fairly conducted, and are in a position to see and appreciate the effect of prejudicial conduct on the part of the parties, or improper argument on the part of counsel, we have uniformly ruled that they have a broad discretion in the granting of new trials, and that this discretion will not be interfered with except in case of clear abuse. Wilhelm v. Louisville Ry. Co., 147 Ky 196, 143 S.W. 1013; Pace v. Paducah Ry. & Lighting Co., 89 S.W. 105, 28 Ky. Law Rep. 278; Conley v. Central Ky. Traction Co., 152 Ky. 764, 154 S.W. 41; Pack v. Camden Interstate Ry. Co., 154 Ky. 538, 157 S.W. 906. In this case we have carefully considered the record of the first trial, and conclude that there was no abuse of discretion.

2. It is next insisted that the petition is fatally defective, and that the trial court erred in refusing to sustain defendant's motion for judgment, notwithstanding the verdict.

The petition is first assailed on the ground that it does not allege ownership of the notes at the time of filing suit. Under the Negotiable Instruments Act the holder of a negotiable instrument may sue thereon in his own name. Subsection 51, § 3720b, Kentucky Statutes. "Holder" means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof. "Bearer" means the person in possession of a bill or note which is payable to bearer. Subsection 190, § 3720b, Kentucky Statutes. The instrument is payable to bearer when the only or last indorsement is an indorsement in blank. Subsection 9, § 3720b, Kentucky Statutes. The petition alleges that the notes were owned and held by the bank at the date of their maturity. These notes were indorsed in blank. They were in possession of the bank when suit was instituted, and were filed as exhibits. Notwithstanding the failure of the bank to allege that it owned the notes when suit was filed, the above facts are sufficient to show that it was the holder of the notes and entitled to sue thereon in its own name.

The next ground of attack is the failure of the petition to allege presentment and demand. It is true that presentment and demand are not alleged in terms. The following facts, however, are alleged: Each of the notes was by its terms made payable at the plaintiff bank, and was owned and held by it on the date of the maturity thereof, and no part of either of the notes was paid at its maturity. In other words, the notes were in the bank on the day when they became due, and were not paid on that day. It being well settled that the custody by a bank of a note payable at the bank at its maturity is a sufficient presentment (Huffaker, etc., v. National Bank of Monticello, 13 Bush, 644; subsections 72 and 73, § 3720b, Kentucky Statutes), it follows that the facts alleged are sufficient to show presentment, even though presentment is not alleged in terms.

Still another ground of attack on the petition is that notice of dishonor and of waiver are not properly pleaded. With respect to these matters, the petition, after setting out the execution of each of the notes, its indorsement to the bank, and its nonpayment at maturity, is as follows:

"That when and as soon as said note was not paid at maturity written notice of its dishonor and nonpayment was given to the defendant, Charles J. Doherty, and to each of the other indorsers; that, in addition thereto, the defendant, Charles J. Doherty, waived any notice of dishonor of said notes being given to him."

Without entering into a discussion of the sufficiency of these allegations, we may say that the question whether or not written notice of the dishonor of the notes was given to the defendant in proper time, and the further question whether or not defendant, after the maturity and dishonor of the notes, stated to the officers of the bank that he intended to pay the notes, were submitted to the jury and decided in favor of plaintiff, and we therefore conclude that any defect in the allegations of the petition respecting these matters was cured by the verdict. Hill v. Ragland, 114 Ky. 209, 70 S.W. 634, 24 Ky. Law Rep. 1053; Henry Clay Fire Ins. Co. v. Barkley, 160 Ky. 154, 169 S.W. 747; Title Guaranty & S. Co. v. Commonwealth, 141 Ky. 570, 133 S.W. 577; Winstead v. Hicks, 135 Ky. 158, 121 S.W. 1018, 135 Am. St. Rep. 446. It follows that the motion for a judgment notwithstanding the verdict was properly overruled.

3. Another contention is that the evidence is altogether insufficient to sustain the verdict. The evidence for plaintiff is as follows: James B. Brown, then president of plaintiff bank, and Catherine Mooney, his stenographer testify that on the morning of November 12, 1908, the day after the maturity of the notes, a letter notifying the defendant of the dishonor of the notes was dictated by Mr. Brown to Miss Mooney. The letter was written out by Miss Mooney on a typewriter and signed by Mr. Brown. He gave her specific directions to see personally to the mailing of the letter. Miss Mooney addressed the letter to Mr. Doherty at his usual place of business in the Columbia Building in the city of Louisville. She thinks she put a two-cent stamp on it, and then deposited it with her own hands in the mail box at the corner of Fifth and Main streets before 10 o'clock on the same morning. A carbon copy of the letter was produced and read. The superintendent of mails for the Louisville post office testified that a letter deposited in a box at Fifth and Main streets before 10 o'clock in the morning, addressed to a party in the Columbia Building, which is located at the corner of Fourth and Main streets, would, according to the usual course of mails at that time, have been delivered at the Columbia Building between 2 and 2:25 o'clock in the afternoon. It was further shown that the letter in question was never returned to the bank, which would have been done if it had not been stamped or there had been any error in direction, etc. In addition to the above facts, Mr. Brown, Miss Mooney, and H. L. Rose, discount clerk, all testify that on the morning of November 13, 1908, Mr. Doherty came into the bank with the letter referred to in his hand, and, after stating that he had received the letter, said that he would pay the notes, but, as there were two other indorsers on the notes, he wanted an opportunity to force them to pay their part. As opposed to this evidence, the defendant emphatically denies that he received the letter in question, or that he went to the bank and promised to pay the notes. It is suggested that the long lapse of time after the maturity of the notes makes it impossible to rely on the recollection of the witnesses, especially in view of the fact that upon one of the material points--i. e., the stamping of the letter--Miss Mooney did not state emphatically that she actually stamped the letter, but stated merely that she thought she did. This statement of hers, considered in connection with the positive statement of other witnesses...