Nave v. Richardson

• Decision Date: 31 August 1865
• Citation: 36 Mo. 130
• Parties: ABRAM NAVE, Plaintiff in Error v. WM. K. RICHARDSON et als., Defendants in Error.
• Court: Missouri Supreme Court

36 Mo. 130

ABRAM NAVE, Plaintiff in Error

v.WM. K. RICHARDSON et als., Defendants in Error.

Supreme Court of Missouri.

August Term, 1865.

Error to Buchanan Court of Common Pleas.

H. M. & A. H. Vories, for plaintiff in error.

Bassett & Lawson, for defendants in error.

HOLMES, Judge, delivered the opinion of the court.

The holder sued the endorser upon a negotiable promissory note, of which the firm of Likens & Boyd and John H. Likens were the makers. On the trial, the plaintiff offered evidence proving the endorsement and transfer of the note to him, and the note was read in evidence. He then called as a witness Robert Boyle, who testified that he was the notary mentioned in the notarial protest which was shown to him, but that he had no remembrance of the manner of the protest, or of the time of day when he protested the note, other than what appeared by the protest itself and his notarial record; which were in substance the same; that he had no remembrance of serving notice of protest on the defendant, but that his custom was to search in the city for parties to whom notice of protest was to be given, and if he could not find them, then he put the notices in the post-office; and “that Likens & Boyd and John H. Likens were partners,” and had a business office in the city of St. Joseph.

The plaintiff then offered in evidence the notarial protest for the purpose of showing that the note had been duly protested for non-payment. In relation to the presentment, demand and refusal of payment, the protest stated merely that the notary “presented the same at the office of Likens & Boyd and was refused payment.”

The defendant objected to the admission of the paper in evidence, and it was excluded by the court. Thereupon the plaintiff took a non-suit with leave to move to set the same aside, and his motion being overruled, he brings the case up by writ of error.

The correctness of the ruling of the court in excluding the notarial protest, is the only question presented for determination. The matter to be proved was, that the note had been duly protested for non-payment, that is, the dishonor of the note. This main fact would consist of three elements: a presentment to the makers for payment, a demand of payment, and a refusal of payment; all which the notarial protest must show, otherwise it will contain no evidence which is competent to go to the jury on the main fact to be proved. And the first question is, whether it shows a presentment to the makers. The statement is that he presented the note at the office of Likens & Boyd, and was refused payment; no more. It is not stated that the note was presented to John H. Likens, nor that John H. Likens was the “Likens” named as one of the firm. Even if it might be inferred that the presentment was made during business hours, it would certainly be an unwarrantable assumption either that John H. Likens was there present, or that he was the person named as one of the firm. A presentment to a clerk at the office, or to either partner, would be sufficient for the firm doing business under the style mentioned in the protest; but it can scarcely be imagined that a presentment to a clerk, or to the partner Boyd, at the office of the firm, one of the makers, could be a presentment to John H. Likens, the other maker, when it does not appear by anything contained in the protest itself, either that he was present there, or that he was a member of the firm; nor do we think it could be presumed, if made certain that the partner Larkins was present, that he was the same person as John H. Likens. It was proved by other testimony, indeed, that John H. Likens was a member of the firm; but that cannot help the instrument--the sufficiency of which alone, and its admissibility as evidence of a presentment, and a dishonor of the note by both makers, are now in question.

It would seem to be clear, that the paper did not purport to state a presentment to John H. Likens in any manner. The authorities are decisive, that a presentment must be made to all the makers; otherwise it is not a valid presentment to charge an endorser. In such case, the dishonor of the bill or note is not proven. (Sto. Prom. Notes, § 239.)...