Rosenthal v. Levine

• Decision Date: 31 January 1930
• Citation: 148 A. 675
• Parties: ROSENTHAL v. LEVINE.
• Court: Maine Supreme Court

148 A. 675

ROSENTHAL

v. LEVINE.

Supreme Judicial Court of Maine.

Jan. 1930.

On Motion from Supreme Judicial Court, Kennebec County, at Law.

Action by Louis J. Rosenthal against William Levine. Verdict for plaintiff. On general motion by defendant. Motion overruled.

Argued before DEASY, C. J., and DUNN, STURGIS, BARNES, PATTANGALL, and FARRINGTON, JJ.

Merrill & Merrill, of Skowhegan, for plaintiff.

F. Harold Dubord, of Waterville, and Frank E. Southard, of Augusta, for defendant.

DEASY, C. J. The negotiable promissory note which is the subject of this suit against an indorser is in the following form:

"$5000. Boston, Mass. June 4, 1928

"Four months after date we promise to pay to the order of Louis J. Rosenthal Five thousand and no/100 Dollars Payable at any bank in Waterville Value received with interest

"J. Miller

"F. Miller."

The note is indorsed by Wm. Levine, and thereafter by Lewis J. Rosenthal. The payee. Louis Rosenthal, is the same individual as Lewis Rosenthal, the last indorser.

J. Miller is the husband of F. (Freida) Miller, the comaker. The defendant is her father, and the plaintiff her cousin. It is a family quarrel.

The plaintiff recovered a verdict for the full amount of the note with interest. The defendant brings the case forward on general motion. The issues of law in this case invoke an application and construction of Public Acts of 1917, c. 257, known as the Negotiable Instruments Law (cited as N. I. L.). The sections and parts of sections which apply to and control the case are as follows:

"Sec. 68. As respects one another indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise."

"Sec. 87. Where the instrument is made payable at a bank it is equivalent to an order to the bank to pay the same for the account of the principal debtor thereon."

"Sec. 96. The notice may be in writing or merely oral and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored."

"Sec. 103. Where the person giving and the person to receive notice reside in the same place, * * * if given at the place of business of the person to receive notice, it must be given before the close of business hours on the day following."

"Sec. 107. Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor."

The order of indorsements was such that prima facie (if presentment, dishonor, and notice be proved) the defendant was liable to pay the note in full to the plaintiff. True, the defendant says that it was "agreed otherwise" (section 68). The making of such agreement is disputed. This issue of fact was passed on by the jury. (See infra, this opinion.)

The defendant contends that there is not sufficient evidence of presentment and dishonor: The note is payable at "any bank in Waterville." At maturity it was held by the Ticonic National Bank in Waterville. No further evidence of presentment is required.

"Where a note is * * * payable at a bank it is sufficient that the note is there ready to be given up on payment, should the promisor come to pay it." Gilbert V. Dennis, 3 Mete. (Mass.) 406, 38 Am. Dec. 329.

"It is sufficient presentment of a note payable at a bank if it is actually in the bank at maturity ready to be delivered on payment." Brannan's N. I. L. p. 652, and cases cited.

The note was dishonored. The makers had not and have not paid it. This fact is not shown by any direct categorical testimony, but the nonpayment by them was assumed throughout the trial, and there is abundant evidence in the case to justify the jury's finding that the note has not been paid, either by the makers or by the defendant. But assuming presentment and dishonor, the defendant says that no sufficient notice thereof was seasonably given to him.

The note fell due October 4, 1928. It was dishonored. Notice was duly received by the plaintiff, the last indorser, on October 5th. He had the following day to give notice to "antecedent parties"; i. e., to Levine, the defendant. Sections 103 and 107.

On October 6th the plaintiff went to the defendant's place of business in Waterville, rather late, but evidently before the close of the defendant's business hours, taking with him two notes, amounting together to $5,000, intended as a renewal of the note now in suit. The defendant refused to indorse and deliver the renewal notes unless the...