Hirshfield v. Ft. Worth Nat. Bank

Decision Date16 February 1892
Citation18 S.W. 743
CourtTexas Supreme Court
PartiesHIRSHFIELD v. FT. WORTH NAT. BANK <I>et al.</I>

Action by W. H. Hirshfield against Ft. Worth National Bank and John E. Arnold. Judgment for defendants. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by MARR, J.:

In the court below the appellant, as plaintiff, filed suit against defendants, alleging in his petition that the Ft. Worth National Bank was a banking corporation duly incorporated under the laws of the United States, and that defendant Arnold was a notary public for Tarrant county, and a clerk and employe of defendant bank. That on the 17th day of September, 1890, plaintiff, Hirshfield, made, executed, and delivered to one J. W. Zook his certain promissory note in writing for the sum of $225, which is set out in said petition as follows: "$225.00. Fort Worth, Tex., Sept. 17, 1890. Sixty days after date, waiving grace and protest, I, or either of us, jointly and severally promise to pay to the order of J. W. Zook two hundred and twenty-five 00-100 dollars, value received, with 10 per cent. interest per annum from date until paid, and 10 per cent. additional for attorney's fee, if collected by law. Negotiable and payable at the City National Bank, Fort Worth, Texas. W. H. HIRSHFIELD." That thereafter, to-wit, on the ____ day of September, and before the maturity thereof, said Zook sold, transferred, indorsed, and delivered said note of plaintiffs to the defendant bank. That thereafter, to-wit, on the 15th day of November, 1890, and before the maturity of said note, said defendants, conspiring and acting together, willfully and maliciously, and with gross negligence, illegally protested, and caused to be protested, plaintiff's said note, and made, issued, and uttered, published, and circulated, and caused to be made, issued, and uttered, published, and circulated, a certain written and printed protest thereof, (and here is set forth the written extension of the protest in usual form;) further alleging in said petition that thereafter, to-wit, on the maturity of said note, said defendants, still conspiring together, willfully, maliciously, fraudulently, and with gross negligence, demanded, collected, and caused plaintiff to pay them, in addition to the amount of the principal and interest of said note, the further sum of three dollars and fifty cents, which they, then and there, claimed and demanded as protest fees, on account of said illegal protest; and plaintiff, being then and there ignorant of and unadvised as to their right to collect said money, paid them the same upon their said fraudulent and illegal demand, which sum they converted to their own use and benefit. That plaintiff was, before the acts of the defendants as aforesaid, "of good reputation and credit, both as a citizen and a business man," but the character of his business is not stated, whether a merchant or trader or not. That by reason of which said illegal, fraudulent, malicious, and grossly negligent acts of defendants plaintiff has suffered and been damaged, in body, mind, reputation, and credit, in the sum of $15,000, besides and in addition to the damage which he has sustained by reason of being caused to pay said pretended protest fees as aforesaid. He further claims the sum of $10,000 by way of exemplary damages, which he says he ought to recover by reason of the premises. To said petition defendant presented a general demurrer, which was sustained by the court. The plaintiff excepted to this ruling of the court, and declined to amend, whereupon the court dismissed the case, and plaintiff, excepting thereto, appealed. Explanatory of above statement: November 16th was the sixtieth day after the date of the note, excluding the day of the date, September 17, 1890; but November 16th was Sunday, as shown by the calendar; hence the protest on November 15th, the Saturday preceding. Plaintiff assigns as error the action of the court upon the demurrer.

Ball, Tempel & Ball, for appellant. Jennings & Lewright, for appellees.

MARR, J., (after stating the facts.)

If the facts alleged in the petition constitute a cause of action, in any view of the case, under the law, then it was not subject to the general demurrer. Was the protest prematurely made, and consequently unauthorized and wrongful? We think so, unless the recognized rule under the law-merchant has been changed by our own statutory enactments. There is a conflict of authority, but, as we think, the weight of the authorities and the reasoning support the proposition that in case of a non-negotiable note, or a negotiable one without "days of grace," (like that in hand,) falling due, according to its face, upon Sunday, payment cannot be required, nor protest made, on the preceding Saturday. The following Monday is the proper date for presentment and protest, unless that is also a legal holiday. The rule is otherwise where days of grace can be claimed. Sunday, being dies non, and not a legal day for exacting payment, all banking business being suspended by law, cannot be computed, except when it is an intermediate day. To do so would make another contract for the parties, and, by requiring the defendant to pay on Saturday, compel him to meet the obligation before the time for its performance had arrived. Days of grace, however, were originally granted as mere indulgence, and hence the difference in the rules and usages upon this point. Avery v. Stewart, 2 Conn. 69, 7 Amer. Dec. 250, and note; 1 Daniel, Neg. Inst. § 627; Tied. Com. Paper, § 316; Salter v. Burt, 20 Wend. 205; Barrett v. Allen, 10 Ohio, 426; Kilgore v. Bulkely, 14 Conn. 363; Kuntz v. Tempel, 48 Mo. 75.

We are also of the opinion that our statutes have not made any change in the rule upon this subject, as above announced. They do not apply to the question in hand, nor prescribe what shall be the practice when the note matures on a Sunday, which is not also a legal holiday. The provisions of the statute, as will be seen upon a close scrutiny, only declare that certain legal holidays shall be treated as the Christian Sabbath in regard to the presentment and protest of bills and notes, etc., and that, in the event of the occurrence of Sunday and a legal holiday upon the date of the maturity of the paper, then it may be presented or protested upon "the preceding Saturday." Rev. St. arts. 2835, 2837. The law, as applicable to notes maturing on Sunday alone, remains as it was before this enactment. If the legislature had intended to recognize the law as already allowing the protest or presentment upon "the preceding Saturday," then the enactment of article 2835 would have been adequate for that purpose, if such had been the established rule. Article 2837 was therefore enacted to provide for a different state of case. We conclude that the plaintiff's note of hand was prematurely and wrongfully protested, but it still remains to decide whether he has otherwise shown a good cause of action.

If he can recover at all, (aside from the question of extortion,) upon the case as made by the petition, then it must be upon the ground that the acts of the defendant in making and extending the protest of the plaintiff's note, if published, or uttering and publishing by such means the fact that it had been dishonored, amount to a libel upon his business reputation or commercial credit. He has alleged no special damages, and unless, therefore, the words are actionable per se, the demurrer was correctly sustained upon this branch of the case. Odger, Sland. & L. 308, 310, 313, 315; Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. Rep. 753. The mere act of protesting the note, regarded as a wrongful act, could not give a right of action for more than nominal damages. The substantial damages result, if at all, from the publication of the act or fact of protest; hence the wrong partakes of the character of a libel or slander, and should accordingly be governed by the same principles of law. The decision in Rolin v. Steward, 14 C. B. 594, was based on a breach of contract, though general damages seem to have been allowed after the dishonor of the draft was published. 3 Lawson, Rights, Rem. & Pr. 1236.

We waive the omission of the plaintiff to allege that he was a merchant or trader, and the absence of any innuendo in this particular, (as there was no special exception,) though such an allegation is of vast importance. Odger, Sland. & L. 63; Cooley, Torts, 202. We concede, also, that to charge a merchant or trader falsely with being a bankrupt or insolvent, or with dishonesty in his business, whether the accusation or imputation is made in writing or by words of mouth, would present a case where the language should be held to be actionable per se, and give right of action, with or without special damages. Authorities supra; Newell v. How, 31 Minn. 235, 17 N. W. Rep. 383; 13 Amer. & Eng. Enc.Law, pp. 306, 314, notes.

But we are of the opinion that the language contained in the writing or official extension of the act of protesting the note which is set out in the petition and made the basis of the suit does not impute, directly or indirectly, insolvency or dishonesty to the plaintiff, or a want of ability or disposition to pay any just debt. It is this writing that the plaintiff alleges the defendants made, uttered, and published concerning himself, and which caused damage to his credit. The writing does not by any means, necessarily or naturally, have that effect, so that the law would presume damages from its publication. The instrument merely recites that upon the 15th day of November, 1890, the notary, (who is defendant Arnold,) at the request...

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