First Nat'l Bank of Burlington v. Hatch

• Decision Date: 30 April 1883
• Citation: 78 Mo. 13
• Parties: THE FIRST NATIONAL BANK OF BURLINGTON, Plaintiff in Error, v. HATCH.
• Court: Missouri Supreme Court

78 Mo. 13

THE FIRST NATIONAL BANK OF BURLINGTON, Plaintiff in Error,

v.HATCH.

Supreme Court of Missouri.

April Term, 1883.

Error to Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Shanklin, Low & McDougal for plaintiff in error.

The notice of presentment and protest was sufficient. It was not necessary that the notice should be in writing. Story on Bills of Exchange, (3 Ed.) p. 367, § 300; 2 Daniel Negotiable Inst., (2 Ed.) p. 30, § 972; Glasgow v. Pratte, 8 Mo. 336; Linville v. Welch, 29 Mo. 203. After the bill was presented and protested for non-acceptance, the promise of defendant to pay it, with a knowledge of all the facts, such promise to pay is a waiver of all informalities as to giving notice. Story on Bills, (2 Ed.) p. 332, §§ 280, 320, 373; 2 Daniel Neg. Inst., § 1147; Harness v. Daviess Co. Savings Ass'n, 46 Mo. 357; Salisbury v. Renick, 44 Mo. 554; Clayton v. Phipps, 14 Mo. 399; Dorsey v. Watson, 14 Mo. 59; Wilson v. Huston, 13 Mo. 146; Mense v. Osbern, 5 Mo. 544; Sigerson v. Mathews, 20 How. 498; Thornton v. Wynn, 12 Wheat. 184; Reynolds v. Douglass, 12 Pet. 497; Faulkner v. Faulkner, 73 Mo. 327.

W. C. Samuel and George W. Warder for defendant in error.

Allegation of demand for acceptance and certificate of presentment for acceptance insufficient. Daniel Neg. Inst., §§ 462, 654, 950, 953; Edwards Bills, (2 Ed.) top p. 477; Musson v. Lake, 4 How. 262; Smith v. Gibbs, 10 Miss. (2 Sm. & Mar.) 479; Fall River Bank v. Willard, 5 Met. 216; Mitchell v. DeGrand, 1 Mason (U. S. C. C.) 176; Price v. McClare, 3 Abb. Pr. 253; Robinson v. Johnson, 1 Mo. 435; Draper v. Clemens, 4 Mo. 52; Nave v. Richardson, 36 Mo. 133; Chitty on Bills, 260 note; Ib., 402. The drawee cannot waive due diligence in presentment. Pierce v. Whiting, 29 Me. 188; Ex parte Bigold, 2 Mont. & A. 633; Lee Bank v. Spencer, 6 Met. 308; Dan. Neg. Inst., § 1109; May v. Boisseau, 8 Leigh 164; Posey v. Decatur Bank, 12 Ala. 815. Evidence of waiver of notice must be pleaded. Lumber v. Palmer, 29 Iowa 104; Cole v. Wintercost, 12 Texas 118; Garvey v. Fowler, 2 Sand. 665; Shultz v. Dupuy, 3 Abb. Pr. 252; Pier v. Heinrichoffen, 52 Mo. 333; Hall v. Davis, 41 Ga. 614; Burgh v. Legge, 5 Mees. & W. 418; Edwards Bills, *636. Promise to pay must be made after full knowledge of the facts showing him not legally bound to pay. Dorsey v. Watson, 14 Mo. 59; Clayton v. Phipps, 14 Mo. 399; Salisbury v. Renick, 44 Mo. 554; Arnold v. Dresser, 90 Mass. (8 Allen) 436; Low v. Howard, 11 Cush. 268; Kelley v. Brown, 5 Gray 108; Ballin v. Betcke, 11 Iowa 204; Ault v. Sloan, 4 Iowa 504; 2 Greenleaf Ev., (Red. Ed.) § 190, and cases cited, n. 1; Bank v. Baldwin, 17 N. J. L. 487; Edwards v. Tandy, 36 N. H. 540; Freeman v. O'Brien, 38 Iowa 406; Lilly v. Petteway, 73 N. C. 358; Campbell v. Barney, 11 Iowa 43; Trimble v. Thorn, 16 Johns. 152. Promise must be explicit and unequivocal. Tardy v. Boyd, 26 Gratt. 631; Allen v. Harrah, 30 Iowa 363; Creamer v. Perry, 17 Pick. 332; Thornton v. Wynn, 12 Wheat. 183; Story on Bills, § 321. Notice of dishonor should be sent on the day after protest. 1 Parsons Notes and Bills, 511, note l; 3 Kent, (12 Ed.) 106, note d; Bank v. Orris, 40 Iowa 332; Grant v. Strutzel, 6 N. W. Rep. 119; Griffith v. Assmann, 48 Mo. 66; Bank v. Taylor, 34 N. Y. 128, and cases cited. Want of funds by drawee does not excuse presentment as against the indorser. Ramdulollday v. Darieux, 4 Wash. C. C. 61; Ralston v. Bullits, 3 Bibb 261; Scarborough v. Harris, 1 Bay 178. Notice must come from one entitled to demand payment. Parsons Neg. Inst., §§ 972, 1083; Juniata Bank v. Hale, 16 S. & R. 157; Magruder v. Union Bank, 3 Pet. (U. S.) 87; Staunton v. Blossom, 14 Mass. 116.

MARTIN, C.

The plaintiff brought suit on the 14th day of September, 1878, against the defendant as the indorser of a foreign bill of exchange drawn on the 25th day of May, 1873, by the Burlington & Southwestern Railway Company on Elijah Smith, the financial agent of the company at Boston, payable, in the sum of $5,000, forty days after date. The bill was indorsed by the defendant to the plaintiff, for the sum of $5,000, which was paid at the time of the indorsement and delivery to plaintiff. The petition is in the usual form describing the making, indorsement and delivery of the bill before maturity. The petition contains the averment that “said bill of exchange was subsequently, on the 30th day of May, 1873, presented to the said Elijah Smith at his office in the Sears building in Boston, Massachusetts, for acceptance, and was by him then and there declined and refused acceptance and not accepted, and said bill of exchange was, on that day, duly protested for non-acceptance, of all which said defendant Henry Hatch had due notice.” The answer consisted of a general denial. The case was tried by the court without a jury.

The plaintiff submitted in evidence the bill of exchange and the indorsements thereon, and the certificate of the notary relating to the dishonor of the paper and notice of that fact to the defendant. The certificate of the notary in Boston under his hand and seal, was as follows: “On this 30th day of May, in the year of our Lord, 1873, I, Albert W. Adams, notary public, duly commissioned and sworn, in and for the county of Suffolk, and practicing in the city of Boston, at the request of C. F. Smith, Esq., cashier of the Continental National Bank of Boston, went with the original bill, a copy of which is hereto annexed, within the time therein limited, and demanded acceptance thereof of the drawee, at his office in Sears building, and he answered, ‘I decline accepting.’ The bill remaining unpaid, I duly and officially notified the last indorser by a written notice sent him by mail to First National Bank, Burhngton, Iowa, enclosing like notices to each of the other parties to said bill, (postage prepaid) in each of said notices requiring payment. Wherefore, I, the said notary, by request as aforesaid, have protested, and by these presents do solemnly protest against the drawer of said bill, and all others concerned therein, for exchange, re-exchange and all costs, charges, damages and interest suffered and sustained, or to be suffered and sustained by reason or in consequence of non-payment thereof.”

The record recites that this certificate was, on objection of defendant, excluded as evidence of notice of protest, but was read as evidence of protest for non-acceptance.

Lyman Cook, president of plaintiff, testified among other things, that defendant was at the bank two or three times a week; that he kept his account there, and witness talked with him about the draft; that immediately after the protest witness went down to defendant's office and payment was promised, and defendant admitted his liability.

Q. What protest was it you notified Mr. Hatch and the rest of the indorsers of? A. When the notary first protested the draft. I don't know as it was protested but once. I think there was but one protest about it. I forget whether it was at sight or not. I notified them of the first protest that came.

Q. How soon after you received the notice of the protest for non-acceptance did you have a talk with Mr. Hatch? A. I couldn't say now, but I think the same day; that is my impression; that I saw him the same day that we got the notice. I didn't take the notice down to him, but saw him and said to him the draft was protested; and I think they knew it before I got there. It was my impression they had a notice with them.

Mr. Lauman testified to conversations with defendant tending to establish an acknowledgment of his liability after the protest.

The defendant was called by the plaintiff, and testified: “I don't know that I ever received any notice of the dishonor of this draft. I do not remember now whether I did or not, and can't say.” He testified that he was in the plaintiff's bank nearly every day and talked with the president and cashier about the draft. He continues: “I cannot say that they notified me that it had been protested for non-acceptance; but they talked with me about it, and we knew it had not been accepted, and Smith would not pay it. They might have told me it had been presented and not accepted, and protested, about the time it occurred, but I do not now remember. I should not think it strange if I did receive notice of protest for non-acceptance, because I received so many notices of failure to accept about the time of Smith's failure, but can't say positively as to this bill.” Again, “Mr. Elijah Smith having failed, notices of protest rained all around.” He testified that he expected the draft would be paid when it was drawn and indorsed, but that he knew it would be dishonored before it was protested; that he had heard of Smith's failure, and that Smith had telegraphed him that he would accept no more bills.

The defendant offered no evidence. The case was submitted and taken under advisement, the plaintiff having asked the court to give the following declarations of law:

1. If the court, sitting as a jury, believes from the evidence that Henry Hatch, the defendant, indorsed the draft in suit, and that the same was presented by the holder thereof for acceptance, and that acceptance was refused, and that it was duly protested for non-acceptance, and that notice of such presentment and protest thereof was given to said Hatch by plaintiff or the president or cashier thereof within a reasonable time thereafter, the court must find for the plaintiff.

2. To fix the liability of defendant, it is not absolutely necessary that he should have written notice of the presentment and protest of the draft in suit. It is sufficient if he has had verbal notice thereof from plaintiff or its officers; therefore, if the court finds from the evidence that defendant had verbal notice from the plaintiff or its officer, within a reasonable time after the presentment and protest of said draft for non-acceptance, the court sitting as a jury ought to find for the plaintiff.

3. If ...