U.S. Nat. Bank v. Burton

Decision Date12 May 1886
Citation3 A. 756,58 Vt. 426
PartiesUNITED STATES NAT. BANK v. BURTON and another.
CourtVermont Supreme Court

Assumpsit on a draft. Trial by court, April term, 1885, Franklin county; Walker, J., presiding. Judgment for the plaintiff.

The plaintiff offered in evidence a draft as follows:

"St. Albans, January 30, 1885.

"Four months after date pay the First National Bank of St. Albans, or order, four thousand forty-six and eighty-one hundredths dollars, value received, and charge to account of Burton & Sowles.

"To Glens Falls Shirt Co., St. Albans, Vermont."

The draft was "accepted, payable at the National Bank of Commonwealth, Boston, Mass. Glens Falls Shirt Co. By B. C. Hall, Treasurer;" and indorsed: "Pay to E. G. Sherman, Cas., U. S. Nat. Bank, New York. A. Sowles, Cas.;" also: "Pay J. J. Eddy, Cas., Maverick National Bank, Boston, Massachusetts, for collection."

The plaintiff offered the notarial certificate, and protest thereto annexed, and it is referred to. The plaintiff also introduced the testimony of Albert Sowles, who testified that he was cashier of the First National Bank of St. Albans in the year 1884, and that E. A. Sowles was president thereof; that the above draft was given to and passed through the latter bank in renewal of former drafts held and owned by that bank against the same parties for moneys advanced from time to time to the Glens Falls Shirt Company; that said Sowles, cashier, negotiated the same to the United States National Bank, New York, and sent it by post to E. G. Sherman, who was reputed cashier; that L. C. Murray was acting president of the bank, with whom he did business, with Murray as president, and said Sherman as cashier; that he had correspondence with the Maverick National Bank of Boston, Massachusetts; and that J. J. Eddy was reputed cashier thereof and acted as such. The court admitted the draft, notarial certificate, and testimony above, against the objection and exception of the defendant.

The court found that the above draft was drawn on the Glens Falls Shirt Company, located and doing business at St. Albans; that said draft is genuine; that Burton & Sowles were a partnership firm, composed of the defendants, Oscar A. Burton and Edward A. Sowles; that at the time of the execution of said draft, and since, said Burton has resided in Burlington, Vermont, and said Sowles at St. Albans, Vermont; that during said time Burton had an office and place of business in St. Albans, and did a large business there, and elsewhere in other towns; that the above draft was accepted and payable, as above shown, by the indorsee; that thereafter the same was sent, as testified to by Cashier Sowdes, for negotiation, and the same was afterwards indorsed over by L. C. Murray, acting president of plaintiff's bank, to J. J. Eddy, acting cashier of the Maverick Bank of Boston, Massachusetts, for collection; that on the second of June, 1884, at the request of said cashier of said Maverick National Bank, C. H. Smith, a notary public, demanded payment on said draft at the National Bank of Commonwealth, Boston, Massachusetts, and, there being no funds, payment was refused, and the drawers and indorsers were notified, and protest made as set forth in the notarial certificate of protest above, and on the same day said notary mailed a notice of protest through said plaintiff bank and the latter banks to the First National Bank of St. Albans, addressed to Burton & Sowles, as shown by said notice; that said latter bank passed into the hands of a receiver, April 22, 1884, and that said notice to Burton & Sowles was received by said receiver through F. J. Houghton, the clerk of said receiver, June 4, 1884, at St. Albans, Vermont, and on the same day said Houghton inclosed said notice in an envelope, and directed it to "C. A. Burton, Edward A. Sowles, St. Albans, Vermont," as shown by said envelope, and dropped it into the post-office at St. Albans, June 4, 1884, when it was stamped with the stamp of said post-office; said Houghton's duty at that time was to do what he has testified to above, to attend to the business required to be done at the bank by the receiver; that said defendant Sowles never received said notice of protest, or knew about it, until since this suit was brought; that said Burton was out of the state of Vermont continuously from May 30 till June 30, 1884, and in the western states, and after this suit was brought he told said defendant Sowles that he never received any notice of the protest of said draft, but we find that he did receive the notice mailed by Houghton at some time, but we are unable to find from the evidence when he received it; he had it in his possession in May or June, 1885, and the plaintiffs attorney produced it from Burton's counsel in May or June, 1885.

E. A. Sowles, H. A. Burt, and Noble & Smith, for defendant.

The action cannot be maintained in the name of the plaintiff. The draft was indorsed to its cashier. Bank v. Lyman, 20 Vt. 667. The defendants should have been sued as partners. Daniel, Neg. Inst. §§ 970, 1050; Byles, Bills, 444. The notarial certificate was inadmissible as evidence. 1 Greenl. Ev. § 489; Bank v. Gray, 2 Hill, 227; Daniel, Neg. Inst. § 966; Byles, Bills, *390 ;Dakin v. Graves, 48 N. H.45; Kirtland v. Wanzer, 2 Duer, 278; R. L. § 2006. The defendants did not receive legal notice, and are therefore discharged from liability. R. L. § 2006; Daniel, Neg. Inst. §§ 1003, 1006; Cabot Bank v. Warner, 10 Allen, 524; Bank v. Wood, 51 Vt. 471; Byles, Bills, 436, 437; McCrummen v. McCrummen, 5 La. (N. S.) 158; Patrick v. Beazley, 6 How. (Miss.) 609; Greene v. Farley, 20 Ala. 322. Notice must be given the most expeditious way. Daniel, Neg. Inst. §§ 1006, 1033; Byles, Bills, 412, 413, 423, 430; Jarvis v. Manufacturing Co.,23 Me. 287; Darbishire v. Parker, 6 East, 3. Unless due diligence is shown, the loss falls on the sender of the notice. Clarke v. Ward, 4 Duer, 206. At common law, notice must be personally served if parties reside in the same place. Notice by mail is not sufficient, without proof that it actually and seasonably reached him. Our statute does not change the common-law rule in this case. 11. L. § 2006; Byles, Bills, 424; Daniel, Neg. Inst. § 1005; Bank v. Battle, 4 Humph. 86; Bowling v. Harrison, 6 How. 248; 2 Greenl. Ev. § 188; Story, Notes, § 322; Peirce v. Pendar, 5 Mete. 352; 3 Kent, Comm. (5th Ed.) 107. "It is not that the indorser resides in the same town where the protest is made which entitles him to personal notice, but that he resides in the same place with the person who gives the notice." Byles, Bills, 424; Spencer v. Ballou, 18 N. Y. 327; Pars. Merc. Law, 115; Peirce v. Pendar, supra. The envelope Containing the notice was improperly addressed. 1 Wait, Act. & Def. 646; Daniel, Neg. Inst. § 1028; Beckwith v. Smith, 22 Me. 125; Dickins v. Beat, 10 Pet. 572; Bank v. Wood, 51 Vt. 471; Byles, Bills, 420, 421; Walter v. Haynes, 21 E. C L. 721.

E. R. Hard and Cross & Start, for plaintiff.

The first exception of the defendant Sowles is to the admission of the draft, notarial certificate, and the testimony of Albert Sowles. This exception is not entitled to notice, because the ground or grounds of the objection were not specified. Burton v. Driggs, 20 Wall. 125; Camden v. Doremus, 3 How. 515; Hinde v. Longworth, 11 Wheat. 199. The objection, having been made generally to three different and distinct kinds of testimony, could not properly be sustained, if any of the testimony objected to was admissible. Knight v. Smythe, 57 Vt. 529. The draft was not only admissible, but was indispensable to the proof the plaintiff's case, it being the identical instrument declared on. The notarial certificate of presentment, dishonor, protest, and notice was equally competent and necessary. R. L. § 2006; 2 Daniel, Neg. Inst. §§ 959, 1055.

The defendant Sowles' second exception was to the admission of the notice to the defendants, the envelope in which it was sent, and to Houghton's testimony. Even assuming that defendants were entitled to personal notice, still, if notice was sent them through the post-office, and actually and seasonably reached them, or either of them, or went to the residence or place of business of either, it would be sufficient; and as these facts were to be found by the court, the objection to the notice was not well taken. 2 Daniel, Neg. Inst. § 1003. And so was the testimony of Sowles; as without proof of his official character as cashier of the First National Bank, in which capacity he indorsed the paper to the plaintiff, the right of the plaintiff, as indorsee, to maintain the suit would not have appeared. "The cashier of a bank has a general authority to issue and indorse negotiable paper." Morawitz, Corp. § 65. So it was proper, if not necessary, to show that Sherman was cashier of the plaintiff bank, and that Murray was its president, since the indorsement of the draft by the First National Bank of St. Albans (the payee) was to "E. G. Sherman, Cashier," and the indorsement of it by the plaintiff to the Maverick National Bank was by "L. C. Murray, President." And proof that Sherman and Murray were respectively the acting and reputed cashier and president of the plaintiff bank was competent, and was sufficient for the purposes of this case. Ang. & A. Corp. § 139. The envelope, with its superscription, "O. A. Burton, Edward A. Sowles, St. Albans, Vt.," with the postage stamp and post-mark, "St. Albans, Vt., June 4," which was proved and found to be the post-mark of the St. Albans post-office, was also entirely competent as bearing upon the question whether the defendants actually received seasonable notice. The post-mark is prima facie evidence of mailing. 2 Daniel, Neg. Inst. § 1052.

The testimony of Hard was admissible. Wade, Notice, § 751; 2 Daniel, Neg. Inst. § 999.

The fourth exception of Sowles was the rendition of judgment for the plaintiff. As the judgment was rendered upon all the...

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3 cases
  • Valiquette v. Clark Bros. Coal Mining Co.
    • United States
    • Vermont Supreme Court
    • October 6, 1910
    ...was maintainable in its name. There are many other cases in this state to the same effect, and among them is United States National Bank v. Burton & Sowles, 58 Vt 426, 3 Atl. 756. That was assumpsit on a draft, and it was objected that the plaintiff could not maintain the action because the......
  • Nelson Brown's Exr. v. J. C. Dunn's Est
    • United States
    • Vermont Supreme Court
    • May 6, 1903
    ...v. Mutual Life Association, 47 Vt. 528; Clark v. Employers' Liability Assurance Co., 72 Vt. 458; Phelps v. Conant, 30 Vt. 277; Bank v. Burton, 58 Vt. 426; Rutland & Burlington R. R. Co. v. Cole, 24 Vt. Pangborn v. Saxton, 11 Vt. 79; McPeck v. Moore, 51 Vt. 269; 15 Ency. Pl. & Pr. 509. The e......
  • Brown's Ex'r v. Dunn's Estate
    • United States
    • Vermont Supreme Court
    • May 6, 1903
    ...Association, 47 Vt. 528; Clark v. Employers' Liability Assurance Co., 72 Vt. 464, 48 Atl. 639; Phelps v. Conant, 30 Vt. 277; Bank v. Burton, 58 Vt. 426, 3 Atl. 756; Rutland & Burlington R. R. Co. v. Cole, 24 Vt. 33; Paugborn v. Saxton, 11 Vt. 79; McPeck v. Moore, 51 Vt. 269; 15 Eucy. PI. & ......

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