Merchants National Bank v. A. H. Carpenter

• Decision Date: 02 May 1933
• Citation: 165 A. 909,105 Vt. 339
• Parties: MERCHANTS NATIONAL BANK v. A. H. CARPENTER ET AL
• Court: Vermont Supreme Court

165 A. 909

105 Vt. 339

MERCHANTS NATIONAL BANK v. A. H. CARPENTER ET AL

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Bills and Notes---Negotiable Instruments Act---Conditions of Indorser's Liability---Presentment Where Note Payable at Bank---Presumptions---Evidence---Inferences Permissible as to Continuity of Fact---Presumption That Note Was in Bank at Maturity from Proof That It Was There Five Days Prior to Maturity---Motion for Directed Verdict---Necessity of Stating Precise Grounds---Grounds in Motion for Directed Verdict as Too General to Raise Question for Consideration in Supreme Court---Letter Stating Reason for Non-acceptance of Note Returned Therewith Not Objectionable as Self-serving---Necessity of Making Objection Below to Admission of Evidence To Raise Question of Error---Insufficiency of Record To Justify Exclusion of Note on Ground That It Conclusively Appeared Indorsement Thereon Was Obtained by Fraud---Trial---Error in Failure To Charge Cured by Supplemental Charge to Which No Exception Was Taken---Substantial Compliance with Requested Charge Sufficient.

1. Indorser's liability is conditioned upon seasonable presentation of note to maker, and seasonable notification to him of maker's default.

2. Where note is payable at bank, under Negotiable Instruments Act there is sufficient presentment if note is actually in bank at maturity ready to be delivered to person entitled thereto on payment.

3. In absence of proof to contrary, note payable at bank will be presumed to have been in bank on day of maturity.

4. Supreme Court will infer that particular fact continues to exist as long as such fact usually, as matter of experience continues to exist.

5. Where note was in bank at which payable five days before it became due, it may be inferred that instrument continued to remain in bank until maturity.

6. Motion for directed verdict must point out precise grounds upon which it is predicated.

7. Motion for directed verdict on grounds that "upon all the evidence plaintiff is not entitled to recover," and that plaintiff has failed to prove that note in suit was a "subsisting obligation of the defendant," held too general to raise any question for consideration of Supreme Court.

8. Whether note in suit had been paid by defendant by another note, signed by him as maker, and sent to plaintiff about two months after dishonor of former instrument on which he was indorser, held for jury.

9. In ACTION OF CONTRACT on note, registered letter by payee to defendant who was indorser on such note, returning to him second note signed by him as maker, which he had sent plaintiff about two months after dishonor of instrument in suit, stating reasons for non-acceptance by payee, held not objectionable as self-serving.

10. Objection to admission of evidence not made below will not be considered in Supreme Court.

11. In ACTION OF CONTRACT on note which was consolidation of several smaller notes, held that there was no merit in contention that such last-mentioned notes should have been excluded because it conclusively appeared that indorsement on second one had been obtained by fraud.

12. Where exception was taken to failure of court to submit to jury issue of alleged fraudulent representations of plaintiff in obtaining defendant's indorsement on note, and thereupon supplemental charge covering subject was given, to which no exception was taken, error, if any, was cured.

13. Requested instruction, that making of untrue representation as matter of knowledge, when person making it did not possess such knowledge, is actionable, held substantially complied with by charge as given.

ACTION OF CONTRACT on note. Plea, general issue by both defendants. Defendant A. H. Carpenter also filed special plea in bar and declaration in set off. Trial by jury at the June Term, 1932 Caledonia County, Sturtevant, J., presiding. Verdict for plaintiff, and judgment thereon. The defendant A. H Carpenter excepted. The opinion states the case.

Judgment affirmed.

Searles & Graves and A. H. Carpenter (of Stockton, Calif.) pro se for the defendant A. H. Carpenter.

Porter, Witters & Longmoore for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

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 it 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. Chap. 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 Ore. 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 Vergne 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...