Greffet v. Dowdall

• Decision Date: 07 April 1885
• Citation: 17 Mo.App. 280
• Parties: J. F. GREFFET, Defendant in Error, v. J. A. DOWDALL, Plaintiff in Error.
• Court: Missouri Court of Appeals

17 Mo.App. 280

J. F. GREFFET, Defendant in Error,

v.J. A. DOWDALL, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Apr. 7, 1885.

ERROR to the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

C. M. NAPTON and MCENTIRE & LOEVY, for the plaintiff in error: This cause is submitted on the authority of Kleinman v. Boernstein (32 Mo. 311); and Edwards v. Thomas (66 Mo. 468).

T. A. RUSSELL, for the defendant in error: The notary's certificate is prima facie evidence of demand, protest, and notice.--Rev. Stat. sect. 2320; Bank v. Hatch, 78 Mo. 13-22; Bank v. Chambers, 14 Mo. App. 152.

THOMPSON, J., delivered the opinion of the court.

The plaintiff having taken a non-suit as to the second count of the petition, the questions for decision arise exclusively upon the first count. The action, as stated in this count, is upon a negotiable promissory note for $400, made by H. H. McCabe, at St. Louis, Missouri, on the 27th day of September, 1873, payable sixty days after date, to the order of Joseph A. Dowdall, this defendant, by whom it was endorsed before maturity. It was protested for non-payment on the 29th of November, 1873, and the certificate of the notary recites: “Of all which I have given due notice in writing and print to the parties concerned, in manner following: To Joseph A. Dowdall by delivering such notice in St. Louis, at his place of business, to the person in charge.” The defendant was called by the plaintiff merely for the purpose of proving the genuineness of his endorsement upon the note. After having testified to this fact he was cross-examined by his own counsel; but this cross-examination took the form of an examination on matters not relating at all to the genuineness of his endorsement, but relating to the notice of protest. As to this matter he was clearly not the plaintiff's witness, and there is no principle under which the plaintiff is bound by his testimony, as the defendant's counsel seems to suppose. He testified that he never received any notice whatever of the protest of this note, and never knew that it was protested; that he left the place of business where he had been previously engaged, a month and a half prior to the maturity of the note, and had no place of business in the city of St. Louis at the time of the protest of the note. This fact, he said, could have been easily ascertained, if inquiry had been made at the place were he had formerly done business, or at his residence in St. Louis, which was on Division street, where he resided with his wife and children. The plaintiff (who, it appears, is a subsequent endorser on the note) was his cousin, and knew these facts very well. He never knew that the note had been dishonored until the bringing of this suit. Joel Wood, testifying for the defendant, corroborated his statement that the defendant had no place of business in St. Louis at the date when the note was protested, having dissolved partnership with McCabe, the maker of the note, on the 15th of the previous October, and not having resumed business until the following January. Articles of dissolution of the partnership which had existed between the plaintiff and McCabe, were also put in evidence, reciting that the partnership was dissolved on October 15th. This was all the evidence in the case. No instructions were asked for on either side, or given.

In order to charge the defendant as endorser of the promissory note sued on, it was not necessary that he should receive actual notice; but it was the duty of the holder of the note, or of the notary, acting as agent of the holder, to make reasonable inquiries at the proper sources, to...