Jaccard v. Anderson

• Decision Date: 31 October 1865
• Citation: 37 Mo. 91
• Parties: EUGENE JACCARD, AUGUSTUS MERMOD, AND D. CONSTANT JACCARD, Respondents, v. WILLIAM C. ANDERSON, Appellant.
• Court: Missouri Supreme Court

37 Mo. 91

EUGENE JACCARD, AUGUSTUS MERMOD, AND D. CONSTANT JACCARD, Respondents,

v.WILLIAM C. ANDERSON, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Court of Common Pleas.

H. S. Lipscomb, with A. M. Gardner, and Lackland, Cline & Jami son, for appellant.

I. An issue in pleading can be made only by the averment of a fact by the plaintiff and the denial thereof by the defendant. The testimony of the witness King must have been taken on an issue thus formed, to be admissible after his death on the second trial below. The words “that said note was not protested at defendant's instance and request, he waiving protest,” do not constitute an averment of demand or excuse for failure to demand payment of the maker. (32 Mo. 188. this case.) There was then, on the first trial of this cause, no averment of demand or excuse for failure to demand payment of the maker. Before the second trial below. King (the witness) died. What he said in the first trial on this issue, not then made by the pleadings, was erroneously admitted on the second trial. (Melvin v. Whitney, 7 Pick. 79; Bull, N. P., 242; Arnold v. Arnold, 17 Pick. 7; 1 Phil. Ev. 393, n; 1 Greenl. Ev. 528.)

II. To constitute a waiver of demand and notice, there must be an agreement between plaintiffs and defendant. What defendant may have said to a third party, not the agent of plaintiffs, is no waiver. (Chit. Bills, 565.) The waiver claimed must be the clear import of the words used by the defendant, and those words should have been spoken to plaintiffs or their agent. (Sto. Bills, 320; Lane v. Savrart, 2 Appleton, 98; 4 Mass. 347; 17 Pick. 335; 11 Wend. 634.)

If the evidence of witness King is to be considered, he distinctly states that defendant did not waive demand and notice.

Garesche and Mead, for respondents,

I. King's testimony was properly read. (Greenl. Ev. §§ 167 & 163.)

II. The waiver of protest need not be in writing. (Sto. Prom. N., § 279.)

III. The court in its refusal and grant of instructions committed no error for which the court will reverse. Those asked by the defendant were either embodied in those given by the court. or are based upon a hypothesis of fact negatived by the decision. That the court did not err where the instructions refused are embodied in others given; that there is no error (see Williams v. Van Meter, 8 Mo. 339; Master v. Fanning, 9 Mo. 314; Patterson v. McClannahan, 13 Mo. 510; Hurst v. Salomon, 13 Mo. 82; Darby v. Charless, 13 Mo. 465; Huntsman v. Rutherford, 13 Mo. 465; Pond v. Wyman, 15 Mo. 181; Gamache v. Piquinot, 7 Mo. 325; Young v. White, 18 Mo. 98; Carroll v. Paul's Exec'r, 19 Mo. 103).

Where instructions are negative to or unsupported by the facts they should be refused. (Patterson v. McClannahan, 13 Mo. 507; Hasse v. Lemp, 26 Mo. 894; Rogers v. McCune, 19 Mo. 568-9; Harrison v. Cachelin, 27 Mo. 26.)

IV. The defendant is liable. Where the necessary steps to fix an endorser are prevented by some act of the latter which puts the holder off his guard, the holder is excused. And herein of King's visit to the plaintiff, at defendant's instance, to see if the holder would renew and save the note from dishonor. (Sto. Prom. N., §§ 271, 272; Sto. Bills Ex. § 317.)

In mercantile as well as legal language, the word “protest,” used in connection with a promissory note endorsed as the defendant used it, is understood to mean the taking of such steps as by law are required to charge an endorser--that is, demand and notice. (Coddington v. Davis, 3 Den. 25; Id. S. C. 610.)

Where the endorser of a note wrote, “you need not protest T. R. & Co.'s note,” &c., and “I will waive the necessity of protest thereof,” held sufficient as a valid waiver of demand and notice. (Cook v. Litchfield, 5 Sanf., N. Y. 341; 10 Barr. Penn. 103; Bruce v. Little, 13 Barb. 167; Spencer v. Harvey, 17 Wend. 491; Gilbert v. Davis, 3 Metc. 496-7; Glasgow v. Pratte, 8 Mo. 336; Day v. Ridgway et al. 17 Penn. 30; Boyd v. Cleveland, 4 Pick. 526; Sigerson v. Matthews, 20 How. 499; Nowell v. Nowell, 8 Me. 220; Dankwater v. Libbetts, 17 Me. 16; Amoskeag Bk. v. Moore, 37 N. H. 543; Russell v. Conkhite, 32 Barb., N. Y. 282.)

V. The foregoing decisions prove that what amounts to a waiver is a question of fact, not of law; and on this, see Union Bk. v. Magruder, 7 Pet. 290. If, therefore, this be a question of fact, there is nothing in the record to justify the reversal of the judgment, as this court never reviews the facts to see if they justify the verdict. (Papin v. Allen, 33 Mo. 260; McCullough v. McCullough, 31 Mo. 226.)

It is also submitted on the above authorities, that it is certain that a holder, at the instance of the endorser, on the day of the maturity of a note, authorized to make arrangements to save it from dishonor and to renew it if possible, approaches the holder and persuades him that if the note be withdrawn, and not protested, the endorser and himself will arrange for its payment, is first a waiver of demand and notice, and as such binds the endorser.

HOLMES, Judge, delivered the opinion of the court.

On a former occasion this case was reversed in this court, upon a defective petition. and was remanded with leave to amend. It then con tained an averment that “at defendant's instance and request the note was not protested, he waiving protest.” On the question whether this was in law a waiver of demand, the court expressed no opinion; but it was said that the question of pleading was distinct from the question of the effect of evidence bearing upon a waiver of protest, and that there must be an averment of a demand, or of facts which could excuse or be equivalent to it, in order to show the defendant's liability. The case now comes up again, after another trial in the court below upon an amended petition. The averment is that “at maturity of said note, to-wit, on the 19th of April, 1857, payment was not demanded, notice given, or the note protested; defendant waived a demand on Washington King, the maker of said note, for the payment thereof, and also notice to him, said defendant, of said demand and non-payment thereof.” It is not expressly stated here that the waiver was made to the holders of the note, or by an agreement of the defendant with them; but inasmuch as nothing less than something of that kind could amount to a waiver of demand and notice, we are inclined to think the averment that the defendant “waived a demand,” may be understood as sufficiently alleging that such waiver was made in some manner or by some agreement between the defendant and the holders of the note, and that evidence of such an agreement or waiver would be admissible under that averment. A waiver of demand would imply and include a waiver of protest and notice, but a waiver of notice only would not be a waiver of demand also. (Barker v. Shepard, 11 Wend. 629.) There is no absolute necessity for a protest of a note or an inland bill of exchange (Sto. Notes, § 297); but as to a protest in such cases, the better opinion would seem to be that an agreement for a waiver of protest alone would fairly imply and import a waiver of demand and notice. (Coddington v. Davis, 3 Den. 16; 1 Pars. Bills, 471, 579.)

On the last trial the plaintiff offered to read in evidence the testimony of Washington King, the maker of the note, as preserved in the bill of exceptions, which was filed on the former trial of the cause (it being admitted that the witness was since deceased); to the admission of which the defendant excepted, for the reason that, first, the issues now made by the amended pleadings were different from what they were at the former trial; and, second, that the testimony offered did not even purport to be all the witness stated on the former trial. There is no objection to the competency of this kind of evidence when proved to be the substance of the testimony which the deceased witness gave on the former occasion. Nor was it objected that the testimony contained in the bill of exceptions was not proved by a witness to be the testimony, or the substance of the testimony which was given on the former trial. These objections appear to have been waived; at any rate, no objection appearing to have been made, and no exception having been taken on these grounds, they will be taken here as having been waived. We have only to consider, then, whether the objections which were made were well taken. And first, as to the issues being the same. As we have seen, the averment of the former petition amounted to a substantial allegation of waiver of a demand and notice, and such waiver was one of the issues of fact on the former trial. The testimony of King appears to have been directed to this issue. The averment of this petition, though made in different words, amounted essentially to the same thing. It raises an issue of fact upon the question of a waiver of a demand and notice.

An issue upon a common or free fishery in one case, and upon a several fishery in another, and an issue upon the stealing of a buggy and upon the stealing of a mule, has been held to be different. (Melvin v. Whiting, 7 Pick. 79; Davis v. Steele, 17 Ala. 354.) The principle upon which the distinction turns is the right of cross-examination, and where the issues are so nearly the same that it is apparent that there was an opportunity to cross-examine the witness as to the same matter in both cases, the issue will be considered as sufficiently identical. (1 Greenl. Ev. § 164.) We think the issues here were substantially the same.

As to the other objection, it is sufficient if the statement embrace the whole substance of what was said on the particular subject which the witness was called to prove; they need not contain what was said upon other subjects or upon other issues in the cause. The rule has reference, again, to the right of cross-examination, and it requires that the substance of what was said upon the particular subject, both on the examination in chief and on cross-examination,...