George B. Sanderson's Adm'r v. Reinstadler

• Decision Date: 31 March 1862
• Citation: 31 Mo. 483
• Parties: GEORGE B. SANDERSON'S ADM'R, Appellant, v. ANDREW REINSTADLER, Respondent.
• Court: Missouri Supreme Court

31 Mo. 483

GEORGE B. SANDERSON'S ADM'R, Appellant,

v.ANDREW REINSTADLER, Respondent.

Supreme Court of Missouri.

March Term, 1862.

1. To make the endorser of a negotiable note liable upon protest for nonpayment, due diligence must be used in giving notice of such protest.

2. What is due diligence is a question of law for the court.

3. When the endorser resides out of the city, it is sufficient to direct the notice to him through the post-office nearest to his residence or to that from which he is in the habit of receiving his letters. If he reside in the city, the notice may be served either at his residence or place of business.

4. The holder of a note is not required to see that the notice of protest actually reaches the endorser.

Appeal from St. Louis Circuit Court.

The opinion states the facts.

Upon the trial by the court without a jury, the plaintiff asked the following instruction, which was refused:

“If the endorser, Andrew Reinstadler, resided outside of the city of St. Louis, and the notary, after inquiry made and upon inquiry of the maker of the note sued upon, was informed that the endorser resided out of the city in the county, and thereupon the notary addressed a notice to the endorser through the postoffice, then such notary used due diligence in serving said notice; and such notice through the postoffice was sufficient under the evidence in this cause, it appearing in evidence that the endorser did reside out of the city, although he may have had a place of business in the city, and the plaintiff is entitled to recover against the endorser.”

The following instruction was given on the part of the plaintiff:

“If the notaries who protested the notes sued upon made reasonable inquiries for the residence or usual place of business of the endorser of the note sued upon, and after making such inquiries learned that the said endorser lived out of the city, and learned of no place of business of the endorser in the city at which personally to serve notices of protest, then service of notice by depositing notices in the postoffice of St. Louis, properly addressed, would be using reasonable diligence, and the notice would be sufficient to authorize the plaintiff to recover.”

The court gave judgment for defendant upon the evidence, and plaintiff appealed.

Whittelsey, for appellant.

I. Notice through the post, to an endorser residing out of the city, is good. (Barrett v. Evans, 28 Mo. 331; Bank of Columbia v. Lawrence, 1 Pet. 578; 1 Am. Lead. Cas. 249; Timms v. Delisle, 5 Blackf. 447; Bell v. State Bk. 7 Blackf. 456; Fisher v. State Bk. 7 Black. 610; Carson v. Bk. of Ala. 4 Ala. 148; Jones v. Lewis, 8 Serg. & W. 14.)

II. Where the endorser has different places of business and residence, notice of protest left at either is sufficient. (Bk. of Columbia v. Lawrence, 1 Pet. 578; Montgomery Bk. v. Marsh, 3 Seld., N. Y., 481; Chouteau v. Webster, 6 Metc. 1; Glascock v. Bk. Missouri, 8 Mo. 443-446; Edwards on Bills, 601-606.)

III. What is due diligence is a question of law. (1 Pet. 578; 1 Am. Lead. Cas. 257; Edwards on Bills, 610.) What constitutes due diligence, see Bk. Utica v. Bender, 21 Wend. 645; Ransom v. Marsh, 3 Hill, N. Y., R. 588.

H. N. Hart, for respondent.

Where the endorser has a notorious place of business in the city, although he resides in the suburban parts of a great city, notice should be given personally, or at his residence or place of business, and notice through the post will not be sufficient. (Ransom v. Mack, 2 Hill, 587; Shelden v. Benham, 4 Hill, 129; Cayuga Bk. v. Bennett, 5 Hill, 236; Ireland v. Kip, 10 J. R. 490; S. C. 11 J. R. 231; Smedes v. Bk. Utica, 20 J. R. 374; 6 Mart. La., N. S., 506; 5 La. 359, 137; 5 Metc. 352; Brindley v. Barr, 3 Harring. 419; Patrick v. Beazely, 6 How. Miss. R. 609.)

BAY, Judge, delivered the opinion of the court.

This was a suit instituted to recover the amount of two promissory notes, made by one William Streit and endorsed by defendant Reinstadler. The notes were protested for non-payment, and the only question arising upon the record is, whether the notice of protest was sufficient to hold the endorser. It was proved that notice was served by depositing the same in the post-office at St. Louis, directed to the defendant; that defendant resided about three miles from St. Louis--St. Louis being his nearest post-office, and the one through which he received his letters. The notes, maturing at different times, were protested by different notaries. One of the notaries testified that he inquired of the maker and holder of the note; that he examined the City Directory for 1857, without being able to find Reinstadler's name therein; and that both maker and holder told him that defendant did not live in town. He further testified that it was the custom, where parties could not be found or their place of business learned, to notify them through the post-office, and this mode was customary when they resided out of the city. The other notary testified that he was unable to learn the residence or place of business of defendant. He examined the City Directory, and made inquiry of other notaries, and of the wife of the maker, at the house of the maker, and also of persons employed in the office of the holder, and, not being able to learn his residence or place of business, put the notice (addressed to him) in the post-office at St. Louis.

Michael Diefenbach, a witness on the part of the defendant, testified that defendant resided three miles from St. Louis, on the Gravois road, and kept a house called “Pleasant Hill;” that he had two places of business in St. Louis-- one on Biddle street or its neighborhood, and the other about two squares from the hospital; that both places are coopershops, defendant being a cooper by trade; don't know that he has any...