Merchants' Nat. Bank v. Carpenter
| Decision Date | 02 May 1933 |
| Citation | 165 A. 909 |
| Parties | MERCHANTS' NAT. BANK v. CARPENTER et al. |
| Court | Vermont Supreme Court |
Exceptions from Caledonia County Court; Allen R. Sturtevant, Judge.
Suit by the Merchants' National Bank against A. H. Carpenter and another. Judgment for plaintiff, and named defendant brings exceptions.
Judgment affirmed.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Porter, Witters & Longmoore, of St. Johnsbury, for plaintiff.
Searles & Graves, of St. Johnsbury, and A. H. Carpenter, of Stockton, Cal., for defendant A. H. Carpenter.
The note in suit is payable to the plaintiff bank at its place of business in St. Johnsbury, and is signed by Cutting and indorsed, waiving demand and notice, by Carpenter. It was unpaid at maturity, and this action was brought against the maker and the indorser, and has resulted in a verdict and judgment against both of them. Carpenter alone has filed a bill of exceptions, and is hereinafter referred to as the defendant.
Upon argument is was found that the defendant's brief failed to point out with sufficient clearness the exceptions relied upon, and his counsel, by leave of court, filed a memorandum in which such exceptions were indicated. Only these are given attention.
A motion for a directed verdict was made and denied, subject to the defendant's exception. There were several grounds stated, but reliance is placed only upon the first, third, fifth, and sixth. The first and sixth grounds are the same in substance, that there was no evidence of due presentment of the note at maturity.
An indorser's liability is conditioned upon the seasonable presentation of the note to the maker, and (what is not questioned here in point of fact) seasonable notification to him of the maker's default. Grapes v. Willoughby, 93 Vt. 458, 460, 108 A. 421; G. L. §§ 2935, 2939. But where, as here, the note is, by its terms, payable at a bank, there is, under the Negotiable Instruments Law (G. L. c. 140, §§ 2941-2944), a sufficient presentment if the note is actually in the bank at maturity ready to be delivered to the person entitled to receive it upon payment. The act in this respect redeclares the rule which generally prevailed before its adoption. Nickell v. Bradshaw, 94 Or. 580, 183 P. 12, 11 A. L. R. 623, 630; Rosenthal v. Levine, 128 Me. 447, 148 A. 675, 676; Engen v. Medberry Farmers', etc., Co. 52 N. D. 410, 203 N. W. 182, 39 A. L. R. 915, 918; Phillips v. Cunningham, 148 Tenn. 164, 253 S. W. 354, 355; De La Yergne v. Globe Printing Co., 27 Colo. App. 308, 148 P. 923, 924; Doherty v. First Nat. Bank, 170 Ky. 810, 186 S. W. 937, 938; Farmers', etc., Bank v. Gordon, 200 Wis. 5, 227 N. W. 234, 235; and see annotations, 11 A. L. R. 976, 50 A. L R. 1201, and Brannan, Negotiable Instruments Law (4th Ed.) 652.
No witness testified that the note was in the bank upon the day of maturity. But this was not necessary, because, in the absence of proof to the contrary, it will be presumed that it was so. Commercial Trust Co. v. New England Macaroni Co., 247 Mass. 366, 141 N. E. 285, 286. Moreover, it is not disputed that the note was there on March 10. 1931, five days before it became due. We will infer that a particular fact continues to exist as long as such fact usually, as a matter of experience, continues to exist (Smith v. Martin, 93 Vt. 111, 129, 106 A. 666), and such inference may safely be drawn here, and thus afford a basis upon which the jury, acting, reasonably, might find that the instrument continued to remain in the bank until it matured. There was no error in the denial of the motion upon this ground.
The third and fifth grounds of the motion are, respectively, "that upon all the evidence the plaintiff is not entitled to recover," and "that the plaintiff has failed to prove that plff's 1 (the note) is a subsisting obligation of the defendant A. H. Carpenter." In support of these grounds it is argued that the evidence showed that the note had been paid by giving another note in renewal, and that there was fraud on the part of the plaintiff. Neither of these contentions is available. The rule is that a motion for a directed verdict must point out the precise grounds upon which it is predicated. Grapes v. Willoughby, supra; De Nottbeck v. Chapman, 93 Vt. 378, 379, 108 A. 338; Castonguay v. G. T. Ry. Co., 91 Vt. 371, 375, 100 A. 908. Those stated here are altogether too general to raise any question for our consideration. Stoddard & Son v. Village of North Troy, 102 Vt. 462, 470, 150 A. 148; Porter Screen Co. v. C. V. Ry. Co., 92 Vt. 1, 6, 102 A. 44. It does not appear on the record that the court had in mind the specific claims which are now made, and so the rule in Wentworth v. Town of Waterbury, 90 Vt. 60, 64, 96 A. 334. does not apply. But, as will appear in the discussion of the next two exceptions, there was evidence which warranted the submission of both of these issues to the jury.
The defendant claimed that the note in suit had been paid by another note, signed by him as maker, and sent to the plaintiff about two months after the dishonor of the former instrument. The second note bore upon its back a notation, placed there by the defendant, to the effect...
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