Sulzbacher Bros. v. Bank of Charleston

• Decision Date: 15 December 1887
• Citation: 6 S.W. 129,86 Tenn. 201
• Parties: SULZBACHER and others v. BANK OF CHARLESTON.
• Court: Tennessee Supreme Court

6 S.W. 129

86 Tenn. 201

SULZBACHER and others v. BANK OF CHARLESTON.

Supreme Court of Tennessee.

December 15, 1887

Appeal from circuit court, Davidson county; FRANK T. REID, Judge.

Colyar Marks & Childress, for complainant. N. D. Malone, for defendants.

FOLKES J.

This is a suit brought in the circuit court of Davidson county by the bank, as the holders for value, in due course of trade, of a draft or bill of exchange drawn by the plaintiffs in error at Nashville on December 2, 1882, for $892.95, payable 30 days after date, to the order of the drawers, addressed to Keller & Rushing, Charleston, S. C., indorsed by Sulzbacher Bros and accepted by Keller & Rushing. The draft was drawn to cover the amount of a bill of goods sold by the drawers to the acceptors, and was by the bank discounted for the benefit of the drawers. The paper, not being paid at maturity, was protested. The question which we are to consider is as to the sufficiency of the notarial certificate, with reference to the demand for payment. The following is a copy of so much of the certificate as is necessary to be noticed. "* * * I Haywood Thayer, notary public, * * * exhibited the original draft * * * at the place of business of Keller & Rushing, the acceptors, and demanded payment of the same, but found it closed, and no one there to respond to demand, which was thereby refused, whereupon I made out notice," etc.

The contention on behalf of the plaintiff in error is that it was necessary for the notary, upon finding the place of business of the acceptors closed, to have gone to their residence, or to have made further inquiry, and effort to find them. Failure to do this, it it insisted, discharged the drawers. Can this contention be sustained? We think not. Being a foreign bill of exchange, the protest must show upon its face all the facts necessary by the law-merchant to charge the drawer and indorsers; and while the protest is not conclusive, but only evidence of such facts as are proper to be stated in it, it may always be rebutted by other evidence showing how the demand was made, or that proper diligence was not used to make it. With the protest before us, and the presumption that the notary, as a public officer, has done his duty, on the one hand, and from the proof offered in rebuttal on the other, the inquiry always is, has due diligence been used by the notary, under all the circumstances, to find the party, and make the demand?

Let us apply this test to the facts of this case. The language of the certificate we have already seen. The only proof in the record which it is contended tends to rebut the presumption in favor of the sufficiency of the notarial act is that the acceptors had "suspended," and "had made a second mortgage," shortly before the maturity of the bill; from which it is argued that their place of business had been abandoned, and that, if the officer was not required ordinarily to go to the residence when the place of business is temporarily closed, or the parties absent, he would have to do so when the parties had ceased to have any place of business.

In the first place, it is proper to reply that the proof does not show that the acceptors had ceased to have and use a place of business. There is nothing to show the character, nature, or extent of their suspension. The only witness who speaks on the subject is a bank officer, who says they had "suspended;" that the bank had appropriated a small balance...