Rolla State Bank v. Pezoldt

• Decision Date: 10 June 1902
• Citation: 95 Mo. App. 404,69 S.W. 51
• Parties: ROLLA STATE BANK v. PEZOLDT et al.
• Court: Missouri Court of Appeals

69 S.W. 51

95 Mo. A. 404

ROLLA STATE BANK v. PEZOLDT et al.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

NOTE — NOTICE OF DISHONOR — LIABILITY OF INDORSER — EVIDENCE — APPEAL — INSTRUCTIONS.

1. Plaintiff, as holder of a negotiable note, caused notice of dishonor to be given by mailing it to defendant on the last day of grace, directed to the same city wherein the protest occurred, and where defendant lived. Held, that the notice, under Missouri decisions, should have been served personally upon him, but that, if he actually received notice by any means not later than the day following the last day of grace, it was sufficient to charge him as indorser.

2. When an indorser, residing in the city where a note is payable, actually receives notice of dishonor on the day following the last day of grace, it is immaterial that it was sent by mail, instead of being personally delivered.

3. Notice of dishonor is requisite to fix the liability of an indorser upon a negotiable note, and the burden of proof rests upon the holder of the paper to show notice of protest was seasonably given to an indorser, defendant.

4. In a suit against the last indorser of a note, it is not essential to show that notice was given to any other indorser but him.

5. Defendant admitted having received a notice of protest, without specifying the time, and it appeared that the notice had been mailed to him on the last day of grace, and that defendant had a place of business in the city where the notice was posted. Held, that the trial judge was warranted in finding that defendant received the notice on the day following that on which it was mailed.

6. A claim of error in giving instructions is not available on appeal, where that point was not assigned in the motion for new trial.

7. A sworn certificate of protest by a notary public is prima facie evidence of the facts of demand of payment, refusal, and protest, as well as of notice of dishonor to the parties interested in the note.

8. The word "mailed," as applied to notice of protest, implies that the requisite postage was prepaid on the letter.

(Syllabus by the Judge.)

Appeal from circuit court, Phelps county; L. B. Woodside, Judge.

Action by the Rolla State Bank against Julius Pezoldt and others. Judgment for plaintiff. Defendant Pezoldt appeals. Affirmed.

Crites & Garrison, for appellant. T. M. & C. H. Jones, for respondent.

BARCLAY, J.

This action originated before a justice of the peace. It is founded on a negotiable promissory note, dated "Rolla, Mo., June 21, 1900," at 60 days, for $250 and interest, payable to the order of E. A. Goodhue, and expressed to be for value received. It is signed by F. E. Dowd. On the back are indorsements by the payee, Goodhue, and by J. S. Dowd and Julius Pezoldt, successively. The maker and these three indorsers were made defendants in the summons in the justice's court. Plaintiff, the Rolla State Bank, had judgment before the justice against three of the defendants; the other (J. S. Dowd) not having been served with process. Mr. Pezoldt alone appealed to the circuit court, where a trial anew took place before the learned judge without a jury. A judgment for plaintiff for $262 (including interest) resulted. The leading issue presented in the case is whether the proper steps were taken by plaintiff to fix the liability of defendant as indorser of the note in suit. Plaintiff read in evidence the note (which bore the proper revenue stamp, duly canceled), with the indorsements already mentioned. Then was offered the certificate of protest of the notary. The latter, after the usual statements of presentment, demand, nonpayment, and protest, recited that the notary had given notice in writing thereof, August 23, 1900, to defendant and the other parties to the paper, by mailing the same to each of them at Rolla, Mo. We do not quote the certificate fully. It was duly verified by the affidavit of the notary, and is conceded to be sufficient, except in the particulars pointed out by defendant's criticisms, which we shall discuss. Plaintiff then introduced testimony tending to show that defendant was a butcher, and had a business shop in Rolla, Mo., in which city the plaintiff bank was also located. In a conversation with the cashier of plaintiff, about a month after the note was due, defendant admitted that he had received the notice of protest; but no statement of defendant was given in evidence fixing the date or time when he received the notice. It further appeared that the bank officers knew that defendant had a place of business in Rolla when the note became due. The defendant introduced no testimony at the trial. On these facts the learned trial judge refused an absolute ruling that plaintiff was not entitled to recover. He gave, on the contrary, the two following declarations of law for plaintiff: "(1) The court declares the law to be that, while the certificate of protest read in evidence is not sufficient to show notice of the presentment, demand, and protest of the note sued on, yet, if it is further shown that the defendant received the notice of such presentment, demand, and protest, stated in said certificate to have been mailed to him, then the law presumes that it was received in due time after such mailing. (2) The court further declares the law to be that one who writes his name on the back of a promissory note before the delivery thereof, who is neither the payee or indorsee, is presumed to be a maker, and as such person no protest of said note is necessary." Another request by defendant for a declaration of law was refused in these terms: "(2) That it appears from the notice of protest in this case read that the notice of protest was not mailed to the defendant Pezoldt at the proper time, and the issues must be found for the defendant." Defendant asked another declaration, which the court modified, and gave, after erasing the part we indicate by inclosing in parentheses, and adding the words marked by italics, in the following copy: "(1) The court, sitting as a jury in this case, declares the law to be that if the defendant Pezoldt had a place of business in the city of Rolla, known to the plaintiff, at the time when the note sued on became due, then it was not a sufficient protest of the same to mail notice of protest to the defendant Pezoldt, (that it must further appear that all of said defendants received such notice,) unless it is further shown that such notice was received by said Pezoldt." After the verdict for plaintiff a motion for new trial was filed by defendant, assigning these grounds, viz.: "Because the court erred in denying and refusing defendant's demurrer to plaintiff's evidence; because the court erred in refusing to give and allow instructions asked on behalf of defendant, Nos. 1 and 2; because the judgment of the court was erroneous, and should have been for the defendant." A motion in arrest was also made. As no point of error is assigned thereon, it requires no...