Marshall v. Sonneman
| Decision Date | 27 June 1906 |
| Docket Number | 150 |
| Citation | 216 Pa. 65,64 A. 874 |
| Parties | Marshall v. Sonneman, Appellant |
| Court | Pennsylvania Supreme Court |
Argued May 14, 1906
Appeal, No. 150, Jan. T., 1906, by defendant, from judgment of C.P. York Co., Jan. T., 1905, No. 27, on verdict for plaintiff in case of L. A. Marshall v. August Sonneman. Reversed.
Assumpsit on a promissory note. Before BITTENGER, P. J.
At the trial it appeared that the note in suit was as follows:
24099
M. FINK
Mar. 1.
Other facts appear by the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $2,756.14. Defendant appealed.
Error assigned amongst others was (2) in rejecting the notice of the protest offered in evidence by the defendant.
For the reasons above stated, the second assignment of error is sustained, and the judgment is reversed with a venire facias de novo.
Henry C. Niles, with him George E. Neff, for appellant. -- Mere knowledge of nonpayment is not sufficient notice to hold the indorser: First Nat. Bank of Lancaster v. Shreiner, 110 Pa. 188; Remer v. Downer, 23 Wendell, 620; Etting v. Schuylkill Bank, 2 Pa. 355; Paine v. Edsell, 19 Pa. 178.
The certificate of the notary may be contradicted: Stewart v. Allison, 6 S. & R. 324.
John A. Hoober, with him James G. Glessner and Allen C. Wiest, for appellee. -- The notice contains a most precise description of the note, a statement that payment was demanded and refused and that the note was protested for nonpayment. It is entitled in large letters "notice of protest." The description of the note is so full that it cannot be read without at once having attention directed to the note in suit and being informed that it was dishonored. It is therefore entirely within the requirements of the negotiable instruments law: Tobey v. Lennig, 14 Pa. 483; Stephenson v. Dickson, 24 Pa. 148; Natl. Bank of Stewartstown v. Day, 15 York Leg. Rec. 21.
To relieve Sonneman he must have proven not only that he received no notice of the protest, but also that no notice was given or due diligence used to apprise him of the default of the maker: Tradesmen's Bank of Vineland v. Tillyer, 12 Pa. C. C. Rep. 452; Braneher v. Beltz, 2 Leg. Rec. 394; McGee v. Northumberland Bank, 5 Watts, 32.
Before FELL, BROWN, MESTREZAT, POTTER and ELKIN, JJ.
This is an action by an indorsee against an indorser to recover the balance due on a promissory note. One of the defenses interposed at the trial was an alleged failure to give the defendant notice of the dishonor of the note. The plaintiff proved the execution of the note by the maker and introduced testimony to show that the defendant had indorsed it. A notary public was then called and he testified that he had protested the note at maturity for nonpayment and that on the same day he had delivered notices of protest personally to both the plaintiff and the defendant, who were the indorsers. He said he gave but one notice to the defendant. The certificate of protest was offered in evidence, by which it appears that the note was protested on the day it became due and that the notary had notified the indorsers "by notices of protest personally delivered to" the plaintiff and defendant. A copy of the notice was not produced at the trial by the plaintiff.
The defendant denied that he had received notice of the dishonor of the note. He testified that the notary delivered to him an envelope addressed to L. A. Marshall, the plaintiff, which contained the following notice:
The defendant further testified that the notary gave him no other notice, paper or envelope. He then offered in evidence the notice which, on objection by the plaintiff, the trial judge excluded, stating the reason for his ruling as follows: This is the subject of the second assignment of error.
The correctness of the ruling of the learned court depends upon the sufficiency of this notice. If it was sufficient notice to the defendant of the dishonor of the note, he was not injured by the exclusion of the offer. He admits he received the notice from the notary on the day the note was protested. If, however, the notice was insufficient to charge the defendant with liability on the note, it was error to exclude the offer. In that view it became a question for the jury to determine under the evidence whether legal notice of dishonor had been given, and as bearing on that question, it is apparent that this notice was competent evidence. The notary testified that he delivered only one notice to the defendant, but he denied that the notice excluded was the one he gave the defendant. The defendant testified that he received but one notice from the plaintiff, and that the paper in question was that notice. It is true that the certificate of protest showed that a notice had been delivered to the defendant, but that was only prima facia evidence of the fact and the party could contradict it by other evidence. It was therefore a question of fact for the jury what, if any, notice of protest was given the defendant; and if they had found that the only notice given him was the paper produced by him on the trial it would have been the duty of the court to determine the legal effect of the paper, and if that had been against its sufficiency as a notice, the verdict should have been for the defendant. The controlling question in the case, therefore, was the sufficiency of the notice.
If the holder of negotiable paper desires to charge antecedent parties with its payment it is incumbent on him to give them notice of its dishonor. He may notify either or all of the prior indorsers, but he can compel payment only from those who have received notice of the maker's default. The notice may be either written or verbal, or it may be partly written and partly verbal. "All that is necessary," says the learned author of Byles on Bills, * 276, ...
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