Jarvis v. Garnett

• Citation: 39 Mo. 268
• Parties: ROBERT JARVIS, Respondent, v. LEMUEL H. GARNETT, et als., Appellants.
• Decision Date: 31 October 1866
• Court: United States State Supreme Court of Missouri

39 Mo. 268

ROBERT JARVIS, Respondent,

v.LEMUEL H. GARNETT, et als., Appellants.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Circuit Court.

The court, upon its own motion, gave the following instructions:

1. If the note sued on was executed by Lemuel H. Garnett as maker, and by Francis M. Ludlow, Noah M. Ludlow, John O'Fallon Jr., Francis Smith, Ferdinand Kennett and John O'Fallon as endorsers, and at the maturity of said note it was placed in the hands of a notary public, who proceeded during business hours on that day to make and did make diligent and faithful search and inquiries for the place of business and whereabouts of said maker among persons likely to know the same and not interested to deceive or misinform him, and presented said note and demanded payment of said maker at his last place of business, which he was informed and believed to be the maker's then place of business, this was a sufficient demand to charge said endorsers without going to the place of residence of said maker.

2. Although the notary may have been misled by the City Directory, or other information, as to the then place of business of said maker, and if said notary on that day delivered a notice of the dishonor of said note to each of said endorsers by leaving it or sending it by mail to the place which after diligent inquiry he believed to be the place of business or residence of each of them, then this is sufficient notice, although he may have been mistaken or misinformed as to the real place of business or residence of one or all of them, and delivered or sent such notice to the wrong places.

3. The fact that Ludlow & Co., after the maturity of the note, took or accepted from Lemuel H. and Leslie Garnett the bond read in evidence as a security to them in the event they should be made liable as endorsers of the note, does not affect the question of their liability to plaintiff, and does not operate to dispense with a regular demand for payment and notice of dishonor to them.

Sharp & Broadhead, Harding & Crane, and Wickham, for appellants.

I. Garnett, the maker of the note in question, had no place of business in St. Louis at its maturity, and no demand of payment was made upon him either personally or at his residence, and there was no refusal on his part to pay the same; consequently the endorsers are discharged--Nave v. Richardson, 36 Mo. 133; Simmons v. Belt et al., 35 Mo., 461; Musson v. Lake, 4 How. (U. S.) 273; McGruder v. Bank of Washington, 9 Wheat. 598; Anderson v. Drake, 14 Johns. 114.

( a) The exceptions to this rule are cases in which all due and proper efforts have been made to make presentment to and demand upon the maker, and it has been found impracticable; but the evidence in this case does not disclose such diligence on the part of the notary--Plahto's Adm'r v. Patchin, 26 Mo. 392; Woodward v. Bank of America, 19 Johns. 391.

( b) It becomes, then, a question of diligence on the part of the notary attempting to make the presentment to and demand of the maker of the note. Having found the former place of business of L. H. Garnett (the maker) shut and no one in charge, the notary should have made further inquiry for him and have presented the note at his residence on Olive street, which could have been found by referring to the City Directory where he had resided fifteen years, and where he could have been found at the maturity of the note, as appears from the evidence--Edw. on Bills, &c. 485; Sto. Prom. Notes, §§ 238 & 241; Bay on Bills, 200; Anderson v. Drake, 14 Johns. 114; Fisher v. Evans, 5 Binney, 541; Freeman v. Boynton, 7 Mass. 483; Gillespie v. Hannake, 4 McCord, 503.

( c) A demand at a store formerly occupied by the maker of the notes, but not occupied by him at the maturity thereof, is not sufficient to charge the endorsers--Edw. on Bills, 489; Bond v. Farnham, 5 Mass. 170; Reid v. Morrison, 2 Watts & S. 401; Wheeler v. Field, 6 Metc. 395; The Granite Bk. v. Ayers, 16 Pick. 392, 394; Benedict v. Caffe, 5 Duer, 231.

Cline & Jamison, for respondent.

The diligence and inquiries of the notary to find the maker of the note constituted a sufficient demand as against the maker to charge the endorsers. The notary went to the last place of business of the maker (which he had left but a short time previous and where his sign still remained), found it closed, and then inquired in the neighborhood for him, and after that inquired of various parties of the same name for the information of the maker as to his place of business, and as he thinks also as to his residence. The notary also states that it is his impression that he inquired at the post-office for the maker, and that in the course of his inquiries he was told by some one that the maker was out of town. It seems also to have been found by the court as a fact set forth in the instruction given of its own motion, that the notary made diligent and faithful search and inquiry for the place of business and whereabouts of the maker among persons likely to know the same and not interested to deceive or misinform him, “and that he presented the note and demanded payment of the maker at his last place of business, which he was informed and believed was the maker's place of business at that time”; and this decision of the court below, being in the nature of a finding of the facts upon the weight of evidence, will not be reversed here. And all of the circumstances of the case together incontestably warrant the decision of the court below that a sufficient presentment for payment had been made to bind the endorsers--Berlin v. Eddy et al., 33 Mo. 426; Plahto v. Patchin, 26 Mo. 392; Shepard v. Citizens' Ins. Co., 8 Mo. 276; Carroll v. Upton, 2 Sandf. 171-6; Chapman v. Lipscomb, 1 Johns. 294; Reid v. Payne, 16 Johns. 218; Bk....