Kern v. Von Phul

• Decision Date: 01 January 1862
• Citation: 7 Minn. 341
• Parties: GEORGE KERN vs. VON PHUL, WATERS & CO.
• Court: Minnesota Supreme Court

7 Minn. 341

GEORGE KERN vs. VON PHUL, WATERS & CO.

Supreme Court of Minnesota.

Error to district court, Washington County.

Points and authorities for plaintiff in error: —

1. We claim that under sec. 6, art. 6, ch. 4, Rev. Stat., which was in force at the time the note described in the complaint in this action was protested, the record of the notary, or a certified copy thereof, kept as directed by said provision, is the only admissible evidence to prove notice to the indorsers, and the other facts which by law such records ought to contain; that even if said certificate were admissible at all, it is secondary evidence, and could only be admitted after the absence of the record was accounted for.

2. In regard to the service of the notice of protest, it does not appear by said certificate of protest, or by any evidence in this case, that said notices were properly enveloped, or that they or any or either of them were enveloped at all. Laws 1856, ch. 5, § 5.

3. In regard to the admissibility of evidence to show the circumstances under which the defendant Kern indorsed said note, see 1 Parsons, 65. In this case we aver, and were ready to prove, that the defendant Kern in fact indorsed said note without recourse; that the said contract of indorsement was one and entire, and that we had a right to prove the part which did not appear on the written contract itself; and that the fact that the defendant Kern indorsed said note without recourse, as aforesaid, was made known to the plaintiffs at the time the note was transferred to them. Rey et al. v. Simpson, 22 How. U. S. 341; Story Prom. Notes, § 479; Bright v. Carpenter, 9 Ohio, 139; 14 U. S. Dig. 489, 490; 13 U. S. Dig. 543; 10 U. S. Dig. 373; 11 U. S. Dig. 389; 21 Pick. 195; 11 Mass. 27; 5 Serg. & R. 363; Moo. & Malk. 226-7-8; 11 Conn. 213; 6 Mass. 430, 433-4; 1 Peters, 89; 4 C. & H. note to Phil. Ev. 600; 5 Vt. 161.

4. It is not enough that the notice of protest should be directed to the indorsers at Stillwater, but the county and state, or at least one of them, should be named, for there are several places by the name of Stillwater; hence directing a notice to Stillwater simply, is not a sufficient compliance with the statute, and no notice at all, and the court erred in admitting the certificate under the second objection.

5. Under the statute in force at the time this note was protested, it was incumbent upon the notary to keep a record of his doings, and all acts in matters of protesting notes and bills of exchange. And the notice and certificate, if evidence at all, was on the ground that it was a copy of the record of the notary. Consequently the court erred in refusing to permit the defendant to show that the notary kept no record at any time. In all cases where the notice is left at a particular post-office, directed to the indorsers at that office, the service is bad.

Points and authorities for defendants in error: —

1. Under our statute, it is required that notice of the protest of any note or bill of exchange shall be given to the indorsers and other parties thereto, and this is a sufficient notice of the dishonor of the bill. The complaint alleges notice of the "demand and protest" of the note to the indorsers, which we think would be sufficient at common law, and is certainly good under our statute and forms of pleading. Comp. Stat. 134, § 95; id. 540, § 64.

2. We do not admit that defendant Kern could not be made liable, except his prior indorsers are duly notified of the non-payment of the note. But under the statute and the decisions of this court, Thompson & Parker were duly notified, and they are made parties in this action, and admit upon the record their liability as first indorsers. Defendant Kern cannot dispute this for them. A service of the notice of protest through the post-office, on indorsers residing in the same town, was proper under the law of 1856. Levering et al. v. Washington, 3 Minn. [323]; Sess. Laws, 1856, ch. 5, § 4. The fact that the records of notaries public are made evidence does not interfere with the force and effect of their certificates of protest, which were evidence at common law, and are expressly declared by our statute to be evidence. Rev. Stat. 44, § 10.

3. The court below, in excluding the testimony offered by defendant Kern, was clearly right. The proof showed Kern to be an indorser in blank upon a negotiable promissory note coming into the hands of the plaintiffs before maturity, in the regular course of business. 1 Greenl. Ev. § 277; Levering et al. v. Washington, 3 Minn. [323]; Walters et al. v. Armstrong, 5 Minn. [448]; Borup et al. v. Nininger, id. 523.

Daniels & Grant, for plaintiff in error.

Wm. M. McClure, for defendants in error.

FLANDRAU, J.

The main question presented by this case is whether an indorser of an ordinary negotiable promissory note, can plead and prove that he had a parol understanding at the time he put his name on the note, by which he was not to be liable on his contract, or, in other words, that he was an indorser without recourse. At first thought, such a proposition would seem to be in direct hostility to the well known and most familiar of all rules of law, that parol evidence is not admissible to contradict or vary the terms of a written instrument; but when an examination of the authorities is made, a great many decisions can be found which tend strongly to innovate upon the above rule, all claiming to observe and adhere to it, yet finding some special circumstances in the particular case upon which to base a distinction, and thus evade its rigorous operation. There is a natural desire, which is founded on legal principles, to impose some character of liability upon a party who signs his name to a contract. This just inclination of the judicial mind, in its efforts to prevent an entire failure of liability, has led to serious encroachments upon the verity and integrity of written instruments, more particularly in regard to promissory notes and bills of exchange than any other species of contracts. A great deal of this confusion and misapplication of principle has arisen from that class of cases where a note is drawn payable to the order of one party, and is indorsed by another previous to its...