Linville v. Welch

Citation29 Mo. 203
PartiesLINVILLE et al., Respondents, v. WELCH, Appellant.
Decision Date31 October 1859
CourtUnited States State Supreme Court of Missouri

1. What is due diligence in giving notice of dishonor of a bill of exchange is a question of law when the facts are admitted; where the facts are disputed, the court should give hypothetical instructions, leaving the facts to be determined by the jury.

2. If the residence of the endorser of a dishonored bill of exchange is unknown to the holder, inquiry should be made to ascertain his domicil or place of business.

3. A bill of exchange drawn in one state of the United States upon a person in another state is to be treated as a foreign bill of exchange; in case of dishonor, protest is necessary; it is not necessary, however, that the notice of dishonor should be accompanied by a copy of the protest. The notice may be a verbal one.

4. Presentment of a bill of exchange to the drawee must be made in a reasonable time. What time will be reasonable depends upon the circumstances of the case.

Appeal from Adair Circuit Court.

This was an action against the defendant as endorser of a bill of exchange for five hundred dollars, dated October 24, 1854, at Cincinnati, Ohio, and drawn by Ellis & Sturges in favor of defendant, Thomas Welch, upon the banking-house of Loker, Renick & Co., at St. Louis. The bill was endorsed by Welch to plaintiffs. From the notary's entry on the face of the bill and the protest it appeared that the bill or draft was protested for nonpayment on the 13th of December, 1854. On the day of the protest the notary sent notice of protest to Ellis & Sturges at Cincinnati, Ohio, and also sent notices to Welch, directed to Cincinnati, Ohio, and to St. Louis, Mo. It appeared that the plaintiffs sent the bill to their agent at St. Louis, Mo., and he, on the 17th of November, 1854, presented it to Loker, Renick & Co., who refused to pay the same. The banking-house of Ellis & Sturges had failed November 7, 1854. The agent returned the bill or draft to the plaintiff, who sent the same back to the agent to present again. He did so on the 13th of December, and the bill was protested on that day for nonpayment. There was no protest made upon the first refusal of payment. There was evidence that defendant had notice of the first refusal of payment.

The court, at the instance of the plaintiffs, gave the following instruction: “If the jury believe from the evidence in the cause that the bill was presented to Loker, Renick & Co. for payment in a reasonable time, and that payment was demanded and refused, and that the defendant was notified of the presentment and refusal to pay in a reasonable time, then they will find for the plaintiffs.”

The court refused to give the instructions asked by defendant. The jury found for plaintiffs.

Barrow & Platte and McCabe, for appellant.

Glover & Richardson, for respondents.

I. The presentment of the draft was made in a reasonable time. Both a verbal and written notice was given. It was regularly protested. A verbal notice was sufficient. (Story on Bills, § 300; Chitty on Bills, 502; 3 Kent Com. 106.)

NAPTON, Judge, delivered the opinion of the court.

The instructions given by the court in this case were erroneous. What is due diligence in giving notice of dishonor of a bill of exchange is a question of law, when the facts are agreed on; and when the facts are disputed, the court should give hypothetical instructions, leaving the facts to be determined by the jury. (1 Peters, 583.)

Upon the facts disclosed in the bill of...

To continue reading

Request your trial
26 cases
  • Townsend v. Chas. H. Heer Dry Goods Co.
    • United States
    • Missouri Supreme Court
    • April 30, 1885
    ...L. J. 267; Story on Notes, sec. 353; 2 Daniel Neg. Ins., sec. 985. (3) The notice may be verbal. Glasgow v. Prattle, 8 Mo. 336; Linville v. Welch, 29 Mo. 203. (4) An immaterial variance in the description of the note, or any kind of misdescription, unless the same be misleading, will not vi......
  • Turner v. Snyder
    • United States
    • Missouri Court of Appeals
    • December 6, 1909
    ...Mo. 56; Skoop v. Railroad, 93 Mo.App. 609; Skeen v. Springfield Engine & Thresher Co., 34 Mo.App. 497; Osborn v. Marks, 29 Mo. 1; Lynnville v. Welch, 29 Mo. 203; Fugitt Nixon, 44 Mo. 295; Burks v. Stam, 165 Mo.App. 455; Sallee v. McMurry, 133 Mo.App. 266. (2) The facts in evidence made a ca......
  • Second Nat. Bank v. M. Samuel & Sons, 50.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 10, 1926
    ...Jex v. Tureaud, 19 La. Ann. 64; Harp v. Kenner, 19 La. Ann. 63; Moody v. Mack, 43 Mo. 210; Morrison v. McCartney, 30 Mo. 183; Linville v. Welch, 29 Mo. 203; Adams v. Darby, 28 Mo. 162, 75 Am. Dec. 115; Carter v. Jennings, 134 Miss. 263, 98 So. In 4 Am. & Eng. Encyc. of Law, p. 365, the law ......
  • Dunnagan v. Briggs
    • United States
    • Missouri Court of Appeals
    • February 4, 1913
    ...v. Moulding Co., 72 Mo.App. 325; Speak v. Dry Goods Co., 22 Mo.App. 122; Estes v. Fry, 22 Mo.App. 80; Hickey v. Ryan, 15 Mo. 63; Linville v. Welch, 29 Mo. 203; Vogel Starr, 132 Mo.App. 430; Turner v. Snyder, 139 Mo.App. 656; Fugitt v. Nixon, 44 Mo. 298; Rowen v. Railroad, 82 Mo.App. 24; Mil......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT