Draper v. Clemens

• Decision Date: 30 April 1835
• Citation: 4 Mo. 52
• Parties: ZACHARIAH G. DRAPER v. JAMES CLEMENS, JUN.
• Court: Missouri Supreme Court

4 Mo. 52

ZACHARIAH G. DRAPER

v.JAMES CLEMENS, JUN.

Supreme Court of Missouri.

April Term, 1835.

WRIT OF ERROR TO THE CIRCUIT COURT OF PIKE COUNTY.

TOMPKINS, J.^a1

Clemens brought this action, and having obtained judgment, to reverse it, Draper prosecutes this writ of error. The facts appearing on the record are, that Draper drew in favor of Clemens on one Simmons in the city of St. Louis. His draft was accepted by Simmons before it became due, the Notary Public at Clemens' request went to the counting room of Simmons, who was a merchant, during the hours of business, to demand payment. There he inquired for Simmons, and was told by his clerk that he was not in. The Notary then demanded payment of the clerk, and was told that he could not pay it. The draft was then protested for non payment, and on the next day a letter was put into the post office directed to Draper, at Hannibal, Missouri. The protest was given in evidence, and the Notary's deposition was read to prove the facts above stated. The draft was dated July 6th, 1829, and payable 60 days after date. It was protested for non-payment on the 7th day of September, which was the third day of grace, and the name of Clemens was indorsed in blank on it. A witness also testified that he believed there was a postoffice at Hannibal in 1828 or 9, but was not certain, and that Draper then lived there. The defendant prayed the court to instruct the jury: 1st. That a presentment to Simmons' clerk at his counting room (he being absent) was not sufficient unless it had been shown that the clerk had been authorized to transact such business. 2nd. If they believed that the notice of the dishonor of the bill was made out on the third day of grace, then the same was made out before the plaintiff had a right to consider it as dishonored. 3rd. That the protest of the bill is not evidence of the presentment of the bill for payment, and of the refusal to pay. 4th. If they believe the Notary was acting only in his official character, then his acts can be proved by a copy only of his record attested by his seal of office. These instructions were refused. After verdict and judgment the defendant moved for a new trial, because; 1st. The court admitted improper testimony. 2nd. The verdict was not warranted by the evidence. 3rd. The verdict is against law and evidence. This motion was overruled. The points arising out of the instructions are: 1st, Is the presentment for payment to Simmons' clerk at his counting room good, Simmons being absent, and it not being proved that the clerk was authorized to pay bills and to transact such business. 2nd. Is the third day of grace the day on which payment ought to be demanded. 3rd. Is the protest evidence of the presentment of the bill for payment and the refusal to pay. 4th. Is the transcript of the register which the statute requires the Notary to keep the only evidence he can give of the presentment and refusal to pay, when he acts in his official character.

1st. At common law the debtor was required to follow the person of the creditor and tender payment when the debt became due. By the law merchant the presentment for payment when no place is named in the bill of exchange or in the acceptance, must be made at the house of the acceptor. See Chitty on Bills p. 266. On that day then it was the duty of the acceptor to be present, or to have an agent there.^(a) And it would be a very hard law, that would require the holder of the bill to prove, that the demand was made at a merchant's counting room of a clerk, to whom that merchant, the debtor, had given authority to pay. Most debtors, if such were the law, would be very careless about giving authority to their clerks to pay bills. The first instruction then was well refused as we think.

2nd. In England inland bills could not be protested for non-payment till the day after they became due (see Chitty on Bills, 318-19). And no days of grace were allowed. Foreign bills were payable on the day they became due, and when the days of grace were adopted as a part of the law of the land, the protest was made for non-payment on the third day of grace, and if the third day happened on Sunday, or some other days, the bill might then be protested on the second. The third section of our act concerning bills of exchange provides, that if any bill dated at any place in this State, and payable at any other place in the State, and being accepted, shall not be paid before the expiration of the third day after it shall become due, &c. We see nothing in the statute which...