Fourth Nat'l Bank of St. Louis v. Heuschen

• Citation: 52 Mo. 207
• Parties: FOURTH NATIONAL BANK OF ST. LOUIS, Respondent, v. FREDERICK W. HEUSCHEN, et al., Appellants.
• Decision Date: 31 March 1873
• Court: United States State Supreme Court of Missouri

52 Mo. 207

FOURTH NATIONAL BANK OF ST. LOUIS, Respondent,

v.FREDERICK W. HEUSCHEN, et al., Appellants.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Hitchcock, Lubke and Player, for Appellants.

“Service of notice of protest by a notary through the hands of a clerk,” without stating the nature of that notice, and especially that the indorser is looked to for payment, is not “sufficient to charge the indorsers.” (34 Mo., 575). If the makers of the note had changed or given up their places of business, a demand at their old place of business or late place of business would be insufficient. (McGruder vs. Bank, 9 Wheat., 598; Anderson vs. Drake, 14 Johns., 114; Reid vs. Morrison, 2 Watts & Serg., 401.)

Finkelnburg and Rassieur, for Respondent.

Actual demand is not necessary in all cases, but there must be proof of either an actual demand or of due diligence, and the latter is sufficient to hold the indorser. (Parsons on Bills, Vol. 1, pp. 443 and 457; Story on Notes, § 264; Holtz vs. Boppe, 37 N. Y., 634; Plahto vs. Patchin, 26 Mo., 390; Rawdon vs. Redfield, 2 Sand., 178.) The notary may act upon the best information he can get, although it be uncertain. (Harris vs. Robinson, 4 How. U. S., 346; Bartlett vs. Isbell, 31 Conn., 296.)

What is due diligence is a question of law, to be fixed by an instruction of the Court upon the circumstances of each case. (Linville vs. Welch, 29 Mo., 203; Bank of Columbia vs. Lawrence, 1 Peters, 578; Harris vs. Robinson, 4 How. U. S. 336; Ransom vs. Mack, 2 Hill, 587.)

If a firm has dissolved and has no place of business as a firm, then a demand at the place of business of either one of the partners is sufficient. (Story on Notes, § 239.)

A demand upon either partner in person is sufficient. (Story on Notes, § 239.)

ADAMS, Judge, delivered the opinion of the court.

This was an action on a negotiable promissory note, by the plaintiffs, as holders for value before maturity, against the makers and indorsers.

The note was made by a partnership composed of the defendants, Frederick W. Heuschen, Frederick Krite and Fred erick Perschbacker, whose firm name was ““Heuschen, Krite & Co.” It was executed to the defendant, John H. Schaales, who indorsed the same to Wilhelm Ricke, and Ricke to the defendant, Frederick W. Heuschen, and he to the plaintiff.

At the close of the evidence the plaintiff asked the following instructions, which were refused by the Court and exceptions duly saved:

“1. The Court declares the law to be that service of notice of protest by a notary, through the hands of a clerk, is sufficient to charge the indorsers, and the notarial certificate verified by affidavit is evidence of such service.”

“2. If the Court, sitting as a jury, believe from the evidence that at the maturity of the note it was placed in the hands of a notary public who during business hours of that day presented the same for payment at a place of business bearing the sign of Heuschen, Krite & Co., a place where said firm had been doing business for several years and which a person in charge thereof then and there represented as the place of business of Heuschen, Krite & Co., to which place plaintiff had been directed by one of the partners as their place of business about ten days previously, and which the same partner designated to the notary as their place of business on the day of maturity, and that furthermore said notary presented said note for payment to F. W. Heuschen, a member of said firm, in person on the same day, then there was sufficient demand to charge the indorsers although the Court may believe that a dissolution of said firm had in fact taken place previous to the maturity of said note.”

The Court then at the instance of the defendants and against the objections of the plaintiff gave the following declaration.

“If the makers of the note sued on in this cause had a place of business in the city of St. Louis, but the individuals, or either of them, composing the firm of Heuschen, Krite & Co., resided in the said city of St. Louis, it was the duty of the notary to demand payment of said note of the makers thereof or either of said makers or at their...