Goucher v. Carthage Novelty Co.

• Citation: 91 S.W. 447,116 Mo. App. 99
• Parties: GOUCHER v. CARTHAGE NOVELTY CO.
• Decision Date: 05 February 1906
• Court: Court of Appeal of Missouri (US)

91 S.W. 447

116 Mo. App. 99

GOUCHER v. CARTHAGE NOVELTY CO.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

BILLS AND NOTES — PROTEST — MAILING NOTICE — EVIDENCE.

Testimony of the notary that she inclosed the notice of protest in an envelope addressed to the indorser of the note and put it in the regular place in the office for outgoing mail, and that a certain person attended each day to the mailing of such letters, is insufficient to show the mailing of notice.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by D. R. Goucher against the Carthage Novelty Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Perkins & Blair, for appellant. McReynolds & Halliburton, for respondent.

JOHNSON, J.

Action against the indorser of a negotiable promissory note. The trial court held that legal notice of dishonor had not been given and entered judgment for defendant, and plaintiff appealed.

On June 15, 1903, A. A. Cass executed and delivered the note to the Carthage Novelty Company, the payee. Before maturity, the payee sold and indorsed it to a Mr. Craig, who in turn sold and delivered it to plaintiff the indorsement being made to Craig or bearer. Plaintiff discounted it at the Carthage National Bank, in whose possession it remained until maturity. On that date, the bank handed the note to Mabel Boggess, a notary public, who demanded payment of the maker, which was refused. The notary then, at the request of the bank, protested the note for nonpayment and on the same day wrote a notice of protest to defendant. All of the parties were in Carthage, and the notary, who was a stenographer in the law office of Howard Gray at that place, testified that she inclosed the written notice in an envelope addressed to defendant, care of J. A. Sigler at Carthage, and put the letter in the regular place in the law office for outgoing mail, and that Mr. Gray attended each day to the mailing of such letters. Mr. Gray did not testify. No claim is made of the giving of any other notice, either verbal or written, to defendant, and Mr. Sigler, in whose care the letter was sent, testified that defendant never received it. Plaintiff was compelled by the bank to take up the note and brought this suit.

We will discuss but one of the questions presented, as its determination, under the view we entertain, is decisive of the case, and the others ceased to be of practical importance to the commercial world with the enactment of article 7 of "An act relating to negotiable instruments." Sess. Acts 1905, p. 254 et seq. The subject of inquiry is this: Is there any evidence in the record before us upon which to base a finding that the written notice was mailed to defendant on the date of the dishonor of the paper? The case was tried by the court without the aid of a jury, and this question, in effect, was there answered against the contention of plaintiff. The burden of proof was on plaintiff to show that the notice was mailed in proper time. That is to say, that the notice was written, inclosed in an envelope, addressed to defendant at Carthage, its place of business, and with the requisite postage affixed was deposited in the post office at that place. In the case of Pier v. Heinrichshoffen, 67 Mo. 163, 29 Am. Rep. 501, the...