Payne v. Patrick

• Decision Date: 01 January 1858
• Citation: 21 Tex. 680
• Parties: GAVIN PAYNE AND OTHERS v. R. PATRICK.
• Court: Texas Supreme Court

21 Tex. 680

GAVIN PAYNE AND OTHERS

v.R. PATRICK.

Supreme Court of Texas.

1858.

Protest for non-payment and notice is such diligence as fixes the liability of a drawer and indorser, only between merchant and merchant, their factors and agents. 11 Tex. 585.

It seems that any one who is a party to a bill may give notice of its dishonor.

The person giving the notice should be a party to the bill, or some one acting under his authority, and liberal presumptions will be indulged in favor of such authority where the contrary is not made to appear.

Where the protest states that notice of demand, etc., was sent to a particular place, it is no evidence that such was the proper place; it must be proved otherwise.

Appeal from Anderson. Tried below before Hon. J. H. Reagan.

Suit by the indorsee of a bill against the drawers and indorsers. The appellant Payne drew a bill in favor of W. C. Gillian & Co. on R. & D. G. Mills at Galveston, which was indorsed by said W. C. G. & Co. to the appellee. At its maturity said bill was in the hands of R. & D. G. Mills, and was by their order presented and protested for non-payment, and notice addressed to the drawer and indorsers at Palestine, Anderson county.

Appellants denied their liability upon said bill because the same was not properly protested, and because no notice was ever given them of its dishonor; they also set up other special matter of defense which was excepted to by appellee, and his exceptions sustained.

There was a verdict and judgment for appellee.

Reeves & Word, for appellant.

I. The plaintiff is the lawful holder of the draft, and the protest for and notice of non-payment must come from him and not from the drawees in the absence of any averment or proof of agency, ownership or liability. Chit. Bills, 368; also Story, Prom. Notes, sec. 301.

The draft was originally payable to W. C. Gillian & Co., or order, and by them indorsed to the plaintiff, and in no other way could the legal title be conveyed to any subsequent holder than by indorsement. Story on Prom. Notes, sec. 120. Any holder, whether legally so or not, may protest for nonacceptance, but the rule is otherwise when the protest is for non-payment. Where notice from the drawee to the maker has been held to be sufficient, it will appear that the drawee was liable as acceptor, and that notice of non-payment came from him in that character rather than as drawee. Chit. Bills, 527-8-9, and the case of Stanton v. Blossom, referred to in the notes on the last named page of Chitty.

II. The defendants first special answer, to which the plaintiffs' exceptions were sustained, set up the want of notice of the presentment and non-payment of the draft. The fact that the notice was deposited by the notary in the post office at Galveston, though he may have performed all that the statute required of him, would not be sufficient without other evidence that he is authorized to serve notice, but the act of depositing in the post office is not service or notice in the sense in which either is used in the statute, and without other proof would not be evidence of notice. The general rule is that the notice, when sent through the post office, must be sent to the one nearest the parties entitled to notice; if this had been shown, it would then be immaterial whether the notice had in fact ever reached the defendants, but the petition alleges that the draft was presented to the drawees for payment and notice given; it does not state by whom, and if the plaintiff was not required to offer any other evidence than the protest or notarial record, the reason why the defendants might not put it in issue by a special plea is not perceived from the plaintiffs' exceptions. Chit. Bills, 505-6 and the notes; also Hart. Dig. 2532; Story, Prom. Notes, sec. 343.

III. But there is no evidence that notice was ever sent to the appellants. There is nothing in the bill or draft to designate the residence of the parties, nor is there any evidence that they lived at Palestine, Anderson county, Texas, or that there is or was a post office at that place. There is no evidence on this subject. To justify a recovery there must be proof that notice, if sent by mail, was sent by the first mail that left and was directed to the nearest post office to the parties to whom sent. Smith, Mercantile Law by Holcomb & Gholsen, 234, note; also Bank U. S. v. Carneal, 2 Pet. 543.

John E. Cravens, for appellee.

I. On inland bills of exchange as to the drawer no notice is required in order to fix his liability. Miller v. Hackle, 3 Johns. 375; 3 Kent, 5th ed. 94; Townley v. Sumerall, 2 Pet. 170;Nichols v. Webb, 8 Wheat. 336.

II. The certificate of the notary is evidence of all the facts it contains (Hart. Dig. 2615) and so it has been decided in Alabama (18 Ala. 256) under a similar statute.

III. This case is distinguishable from the case of Cole v. Wintercost, 12 Tex. 118, that was a foreign bill, that is, it was drawn upon a party in the state of Louisiana.

ROBERTS, J.

There are numerous questions presented in this case. Being a suit by an indorsee against a prior indorsor and the maker of a bill of exchange, which had neither been accepted nor paid, and not having been brought until more than two years after its maturity, and being presented for payment and protested for non-payment, and notice thereof sent to the defendants at Palestine, Anderson county, by a notary public. This species of diligence (by protest and notice) will fix the liability of a drawer and indorsor, only between merchant and merchant, their factors and agents. Hart. Dig. art. 2536. It is not alleged nor was it proved that the drawer, Payne, was a merchant. It was said in one case that although that fact did not appear, the bill of exchange having the appearance of mercantile paper, after verdict, it might be presumed in the absence of other proof. Reid v. Reid, 11 Tex. 585. Whether anything was necessary to be done to fix Payne's liability to the indorsee seems to be a point not very well settled under our statute. Hart. Dig. art. 2530; Durrum v. Hendrick, 4 Tex. 499;Campbell v. Wilson, 6 Tex. 397;Cole v. Wintercost, 12 Tex. 118.

However that may be as to Payne, it is certain that in order to fix the liability of the indorsers, Gillian and Smith, it was necessary either to bring suit against Payne, the drawer, by the first or second term, after maturity, according to the terms of the statute (art. 2530), or to make regular demand, protest, and give notice. Art. 2531; Elliot v. Wiggins, 16 Tex. 596;Reid v. Reid, 11 Tex. 591.

The first objection taken to the mode adopted to secure the defendants' liability is, that R. & D. G. Mills, being the drawees, had the bill presented to themselves, and caused the protest and notice to be given by a notary public for themselves as holders. This is all that the evidence shows as to the party who presented the draft; and the petition does not allege who presented it.

Mr. Chitty says that “any person who happens, whether by accident or otherwise, to be the holder at the time of a bill becomes due, and although he has no right to require payment for his own benefit, may and ought to demand payment, and give notice of the non-payment, so as to prevent loss. Chit. Bills, 365; see also Id. 366; Bank of Utica v. Smith, 18 Johns. 230; Hartford Bank v. Stedman, 3 Conn. 489.

The authorities last cited hold that a notary public who happens to have it, may present it, etc. This must be upon an implied authority from the exigency of the transaction and the usage of business; for properly, the holder of the bill should present it, or have it done by an agent competent to give a legal receipt for the money. Chit. Bills, 365. It may be presumed that the bill was accommodation paper, it not being accepted, and that it was lodged in the hands of Messrs. Mills, as it is often done in bank, to await the remittance of funds, from the drawer or indorser, to meet it. Hartford Bank v. Parro, 17 Mass. 95.

As a question of pleading, it may be remarked that the established precedents of declarations on bills of exchange, in suits by indorsee against the drawer and indorser, do not require that the person who presents the bill shall be especially named. 1, 2 Chit. Precedents, “Assumpsit--Bills,” 79.

It is further contended that there was not sufficient proof of notice of protest for non-payment. The evidence on this subject is confined to the facts stated in the certificates of the...