Fugitt v. Nixon

• Decision Date: 31 August 1869
• Citation: 44 Mo. 295
• Parties: WM. C. FUGITT, Respondent, v. HENRY NIXON, Appellant.
• Court: Missouri Supreme Court

44 Mo. 295

WM. C. FUGITT, Respondent,

v.HENRY NIXON, Appellant.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

This was a suit brought on a draft for $1200, drawn March 29, 1866, at Alleghany City, Pa., by the Alleghany Savings Bank, on Messrs. Work, McCouch & Co., payable to the order of Messrs. Baxter & Bell, indorsed by the latter to defendant, and by defendant to plaintiff. The petition alleged that the draft was transferred to plaintiff July 12, 1866, and that plaintiff transferred it for the purpose of collection to Messrs. Kemper & Paxton, from whom it passed by successive transfers to the Western National Bank of Philadelphia, which bank presented it for payment to the drawees on the 3d day of October, 1866. The answer put in issue the date of the transfer to plaintiff, and averred it to be the 20th day of April, 1866; and that between that date and October 3, when the draft was presented for collection, while the draft was kept out of circulation, the drawer failed, and the draft became worthless. The answer claimed that, by reason of such negligence in presenting the draft for payment, defendant was discharged. It also pleaded failure of notice of presentation and demand within a reasonable time.

Asper & Pollard, for appellants, cited Bogg v. Keil, 1 Mo. 743; Davis v. Francisco, 11 Mo. 572; Linnville v. Welsh, 29 Mo. 203; Sanford v. Dillaway, 10 Mass. 52; Farnum v. Fowle, 12 Mass. 89; Granite Bank v. Ayres, 16 Pick. 392; Edw. on Bills, ed. 1857, p. 486; Jones v. Garrett, 39 Mo. 268; Edw. on Bills, ed. 1857, p. 597; Story on Prom. Notes, § 330; Pars. on Prom. Notes, 506; Ireland v. Kip, 11 Johns. 231; Howard v. Ives, 1 Hill. 263; Strahan v. Graham, 4 Mees. & Welsby, 720; Goupy v. Harden, 7 Taunt. 159; Fry v. Hill, 2 Eng. Com. Law, 417; Smedes v. Bank of Utica, 20 Johns. 372; French v. Bank of Columbia, 4 Cranch, 141; Edw. on Bills, 622-4; Pars. on Cont. 514, 516; Dobree v. Eastwood, 14 Eng. Com. Law, 289; 3 C. & P. 250; Lookwood v. Crawford, 10 Conn. 361.

J. D. S. Cook, and G. W. Dunn, for respondent, cited 1 Pars. on Bills, etc., 516, 517, n. f;2 Penn. St. 355; 6 Watts & Serg. 399; 5 Metc. 212; 5 Mass. 167; 18 Johns. 229; 9 Pet. 33, 45; Story on Bills, ed. 1860, § 294, n. 1; Marsh v. Maxwell, 2 Campb. 210, note; Britain v. Johnson, 1 Dev. 293; 2 Campb. 461; 4 How. 336; 2 Pet. 96; 7 N. Y. 366; Story on Notes, § 335, and cases cited; 1 Barn. & Cress. 245; 8 Eng. Com. Law, 105; 8 Barn. & Cress. 387; 15 Eng. Com. Law, 193; Story on Prom. Notes, §§ 348, 354; Story on Bills, § 301; 1 Pars. on Notes, 466, 472; Pars. on Notes and Bills, 339-345; 7 Taunt. 158, 397, 418; 3 Carr. & Payne, 80; 14 Eng. Com. Law, 462; Field v. Nickerson, 13 Mass. 131.WAGNER, Judge, delivered the opinion of the court.

The court below very properly refused the instruction asked for by the plaintiff, that if, before the time the draft was indorsed by the defendant to the plaintiff, the drawers had become insolvent, and continued insolvent until the same was presented for payment, the finding should be for the plaintiff, without regard to the time when the demand was made.

The presentment of a draft to the drawee must be made in a reasonable time. What is a reasonable time is a question of fact, and depends upon the circumstances of the case. As between the holder of negotiable paper and the prior parties thereto, the insolvency or bankruptcy of the maker or acceptor will constitute no excuse for want of presentment and demand. “The reason of the rule,” said Judge Napton, “is that, notwithstanding the insolvency of the maker, some portion of the note may still be collected; and if no portion can be, at the time of demand, collected, the circumstances of the maker may undergo a change; and it is therefore the indorser's interest that his remedy over against the maker shall not be lost by the laches of the indorsee.” (Davis v. Francisco, 11 Mo. 572.) To this it may be added, as an additional reason, that it is possible that the bill may still be paid by the assistance of friends or otherwise.

In the case we are now considering, the court, with all the facts before it, found that the presentment and demand was made in a reasonable time, and that payment was refused, and that the bill was regularly protested. We have no objections to make to this finding here. The principal defense, however, relied on is the insufficiency of the notice of non-payment and protest. The bill was indorsed by plaintiff to Kemper & Paxton; they indorsed it to a firm in St. Joseph, who sent it to New York, and it was indorsed to the National Bank of that city, by whom it was indorsed to the Western Bank of Philadelphia. At the request of the Western Bank it was presented by a notary, on the 3d day of October, to the drawees for payment, and payment refused, whereupon the notary protested the same, and on the same day inclosed in an envelope, addressed to the cashier of the National Bank in New York, notices for all the drawers and indorsers of the draft.

Kemper & Paxton received the notice of the dishonor early in the same month (October); on what precise day the evidence does not show: and they mailed notice to the plaintiff before the departure of the next mail. On the same day on which the plaintiff received notice he made diligent inquiry for the post-office address of the defendant, who was then a resident of Ohio, and was unable to ascertain it, but was informed by defendant's agent in this State that defendant was then on his way to Missouri, and would arrive in a short time. Plaintiff then instructed Kemper to notify defendant of the dishonor of the draft immediately on his arrival, and that he looked to him for payment. This was done. Kemper says he gave the notice some time in the last of October; but defendant states he did not arrive till the 2d of November, being delayed a week or so longer than ...