Mechanics' Sav. Inst. v. Finn
| Decision Date | 31 January 1876 |
| Parties | MECHANICS' SAVINGS INSTITUTION, Defendant in Error, v. JOHN FINN, Plaintiff in Error. |
| Court | Missouri Court of Appeals |
In a suit to charge the indorser of a promissory note, an allegation that plaintiff had notice of demand and protest is sufficient to warrant the introduction of proof of due notice of demand and refusal to pay by the maker, and is good after verdict.
ERROR to the St. Louis Circuit Court.
Affirmed.
M. Kinealy, for plaintiff in error, cited: Edw. on Bills (2d ed.), 633, 674; Price v. McClare, 6 Duer (N. Y.), 544; Bank of Columbia v. Lawrence, 1 Pet. 578; Stephenson v. Primrose, 8 Port. (Ala. ) 155; Granite Bank v. Ayers, 16 Peck (Tenn.), 392; Commercial Bank v. Strong, 28 Vt. 316.
I. C. Terry, for defendant in error.
This is a suit on a negotiable promissory note, on which defendant is alleged to have been accommodation indorser, and which was made payable at plaintiff's counter, and was discounted by plaintiff before maturity.
The petition is inartificially drawn, and alleges that “said note was not paid at maturity, though demanded at the Mechanics' Savings Institution, and the same was protested for non-payment, of which demand and protest defendant had notice.” The essential thing to hold the defendant as indorser was that he should have due notice of demand on the maker and refusal by him to pay; protest was entirely unnecessary, and need not be alleged to charge the defendant.
The answer denies every material allegation of the petition, and sets up a special defence, which is traversed in the replication, and as to which there is no attempt at proof. On the trial, defendant objected to the introduction in evidence of the note sued on, on the ground that the petition did not set up facts sufficient to constitute a cause of action in this, that it failed to state that defendant had due notice of demand of payment or refusal by the maker to pay. The objection was overruled and the note admitted.
The protest, with the affidavit of the notary, were then offered in evidence. The certificate of protest set forth demand at the Mechanics' Savings Institution, refusal, protest, and due notice to the parties concerned, in the manner following: “* * * To John Finn, at his place of business, with man in charge (P. O'Connor).”
The plaintiff objected to the introduction of the protest, on the ground that it was incompetent and irrelevant, and failed to set forth any due notice to defendant of demand on the maker and refusal. The objection was overruled.
Plaintiff then introduced as a witness the notary, who swore that, on the day of the maturity of the note, he left a written notice of demand on the maker, and refusal to pay, at the...
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