Phillips v. Cunningham

• Decision Date: 09 June 1923
• Citation: 253 S.W. 354
• Parties: PHILLIPS v. CUNNINGHAM et al.
• Court: Tennessee Supreme Court

253 S.W. 354

PHILLIPS v. CUNNINGHAM et al.

Supreme Court of Tennessee.

June 9, 1923.

Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor.

Suit by A. N. Phillips against John Cunningham and another, as accommodation indorser and maker of a note. From decree against both defendants, the named defendant appeals. Affirmed.

Carey & Vorder Brugge, of Memphis, for appellant.

A. B. Knipmeyer, of Memphis, for appellee.

GREEN, C. J.

This is a suit by the payee of a promissory note to recover thereon brought against the maker and accommodation indorser. There was a decree below against both defendants, from which the indorser has appealed.

The indorser defends upon the ground that the note was not duly presented for payment on the day of its maturity. This contention is based upon certain language contained in the notary's certificate of protest. The note was protested the day after it matured and notice mailed to the indorser. Certain language used in the certificate of protest would seem to indicate that presentment was made on the same day that protest was made and notice given.

The deposition of the notary was taken, and she testified that she presented the note for payment to the cashier of the bank at which it was payable on the day it was due, and on the next morning protested it and gave notice of dishonor to the indorser by first mail. This testimony appears to have been excepted to, but the chancellor overruled these exceptions, and assignments of error are based on this action.

The indorser took a bill of exceptions, showing his objections to evidence and the rulings of the chancellor, but this bill of exceptions does not seem to have been signed by the chancellor. We may, however, overlook the condition of the record, and for the purposes of this case concede that the notary should not have been allowed to impeach her own certificate. The result will still be the same.

This is so because the presentment by the notary was a work of supererogation. The note was payable at a Memphis bank. It was put in this bank by the payee for collection some time before it fell due. The note remained in the bank awaiting payment until after banking hours on the day it matured. This was sufficient presentment. It was so held by this court in State Bank v. Napier, 6 Humph. (25 Tenn.) 270, 44 Am. Dec. 308. See, also, 8 C. J. 558; note, 13 L. R. A. (N. S.) 303, 305.

The notary testifies that she took the note in the bank about 4 o'clock on the day it fell due and formally...