Plahto's Adm'r v. Patchin

• Decision Date: 31 March 1858
• Parties: PLAHTO'S ADMINISTRATOR, Plaintiff in Error, v. PATCHIN, Defendant in Error.
• Court: Missouri Supreme Court

26 Mo. 389

PLAHTO'S ADMINISTRATOR, Plaintiff in Error,

v.PATCHIN, Defendant in Error.

Supreme Court of Missouri.

March Term, 1858.

1. What constitutes due diligence on the part of the holder of a promissory note in making inquiries to ascertain the place of business or the residence of the maker thereof depends upon the circumstances of each case.

Error to St. Louis Court of Common Pleas.

This was an action against defendant as endorser of a negotiable promissory note made by Edward Illsley & Co. to the order of defendant, Paul P. Patchin, and by him endorsed to Henry Plahto. The note was dated at St. Louis. The defence relied on was want of due presentment for payment to the makers. The court made the following finding of the facts: “The makers of the note in question resided and did business, at the making and maturity thereof, at Clover Hill, in Franklin county, Missouri. They purchased goods of Plahto in the city of St. Louis, on time, and as a city endorser was requested they procured the accommodation of the defendant, and gave to Plahto said note so endorsed in payment for said goods. Plahto and the defendant both knew the place of business and residence of the makers of the note. On the day of the maturity of said note, and after banking hours, the banking-house of Page & Bacon put said note into the hands of a notary, who made inquiries of other bankers and business men in St. Louis, and examined the city directory to ascertain if said makers resided or did business in said city; and, being unable to learn of them that said makers resided or did business in St. Louis, then noted the said note for protest; made out written notices in the usual form for the defendant and Plahto; called on said Plahto and the defendant respectively and inquired of them if the makers resided or did business in St. Louis; and on being answered in the negative gave to said Plahto and the defendant the usual notices for endorsers after protest for nonpayment. No inquiry was made either of Plahto or the defendant where the place of residence or business of the makers really was. The notary then made out in form his protest for nonpayment. The makers were solvent at the maturity of said note and would have then paid the same if it had been presented to them for payment. Whereupon the court declares that the plaintiff is not entitled to recover.”

A motion for review was made and overruled.

Krum & Harding, for plaintiff in error.

I. Page & Bacon were the holders of the note at its maturity, it being delivered by them to the notary for presentment, endorsed in blank by the defendant. (Story on Bills, § 267; 2 Shep. 101.) The holders will be presumed to have been holders for value, and their acts in making presentment of the note bound the defendant unless they were guilty of laches. (Renshaw v. Triplett, 25 Mo. 213.) The holders had no other evidence, so far as appears of record, of the residence of the makers than the place at which it bears date. The presumption is in such cases that the makers reside at the place where the note bears date. (2 Cranch, 127; 4 S. & R. 480; 3 Kent, 96.) The holders, through their agent, the notary, used all the diligence required of them to ascertain the place of business or residence of the makers. (Hunt v. Maybee, 8 Seld. 266.) The holders were excused for not making presentment; (2 ib.; Sto. Prom. Notes, § 263; 21 Wend. 643;) especially as the notary called on the defendant and inquired if the makers resided in the city and was informed that they did not, and as defendant knew and did not inform the notary where they resided.

Gray, for defendant in error.

I. The endorsement on the note of “Cr. H. Plahto” showed that the note was merely deposited with Page & Bacon for collection, and that it in fact belonged to H. Plahto. Due diligence was not shown in making presentment for payment. (14 Johns. 114; 2 W. & S. 140; 2 Mart. N. S. 511; 19 Johns. 391; 5 Binn. 541; 3 Whart. 116; 1 Barb. 158; 1 Comst. 321; 3 Denio, 145; Sto. on Bill...