Vogel v. Starr

• Decision Date: 29 June 1908
• Citation: 132 Mo. App. 430,112 S.W. 27
• Parties: VOGEL v. STARR.
• Court: Missouri Court of Appeals

112 S.W. 27

132 Mo. App. 430

VOGEL v. STARR.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

1. BILLS AND NOTES—SUFFICIENCY OF NOTICE OF DISHONOR.

The owner of a note who had placed it with another for collection, assuming that it was his duty to communicate to his agent the knowledge of facts material to the subject of the employment he had or might acquire during the course of the employment, was not charged with the further duty either to himself notify the indorser of dishonor of the note, or to make inquiries as to where the indorser received his mail.

2. SAME—DILIGENCE—QUESTIONS OF LAW OR FACT.

Whether a notary exercised reasonable diligence in giving notice of dishonor to an indorser is a question of law, not of fact, where there is no controversy over material facts.

3. SAME—PERSONAL SERVICE—NOTICE OF DISHONOR—SUFFICIENCY.

Personal service on an indorser of notice of dishonor is not required, but constructive service will suffice where reasonable diligence is exercised to make it in the manner best adapted to convey actual notice.

4. SAME.

Where a notary made inquiries of several persons as to the post-office address of an indorser, all of whom appeared to possess some information on the subject and expressed the belief that a certain town was the proper address of the indorser, and that town was the nearest town to the indorser's farm, and was a much larger town than the town at which the indorser in fact received his mail, and the notary acted in good faith, a notice of dishonor sent to such town was sufficient, though because the indorser

did not receive his mail there, but in such other town, it was not received within a reasonable time.

Appeal from Circuit Court, Grundy County; G. W. Wannamaker, Judge.

Action by John Vogel against O.J. Starr. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

P. C. Stepp, W. D. Stepp, and O. N. Gibson, for appellant. A. G. Knight and W. G. Collison, for respondent.

JOHNSON, J.

Action against the indorser of a negotiable promissory note. The failure of the holder to give proper notice of dishonor is the defense interposed. Trial was before the court without the aid of a jury. Judgment was entered for defendant, and plaintiff appealed.

The note in question is as follows: "$45. Trenton, Mo., Oct. 7, 1895. One year after date, I promise to pay to the order of O. J. Starr, forty-five dollars, for value received with interest at the rate of eight per cent. per annum from date, until paid, and if not paid annually, the same to become a part of the principal and bear the same rate of interest as the principal debt. Payable at the First National Bank, Trenton, Mo. C. Millard." A few days after the execution of the note, and long before its maturity, Starr, the payee, sold it to plaintiff for value, and indorsed it in blank. Later plaintiff deposited it with the Trenton National Bank for collection. On the last day of grace, October 10, 1896, and within proper hours, the bank handed the note to a notary public for demand and protest. Millard, the maker, had moved to Wisconsin, and Starr, the indorser, lived in the country about 12 miles from Trenton. The notary testified: "Well, it was done on the date that appears on the protest and on the face of the note, which is the 10th day of October, 1896. This note was given to me to protest by the Trenton National Bank of Trenton, Mo. I didn't know at that time the indorser on the back, Mr. Starr, or I didn't know C. Millard, and don't know him now. The bank told me to protest the note, and they gave me information as to where Millard lived; and, according to that information, I mailed the notice of protest to him at Hanover, Rock county, Wis., and my impression is that in regard to Mr. Starr's address the bank's best information; that is, they told me they were not certain about it. That's the way I remember it; that it was Spickards, Mo. And I took the note. It was payable at the First National Bank, Trenton, Mo., and I took this note to the building that had been occupied by the First National Bank. The First National Bank at that time had gone into liquidation in connection with the old Grundy County National Bank. It had its first banking room at the five corners; and the First National and the old Grundy County National consolidated and liquidated through the Trenton National Bank. * * * This protest shows that I took it to that building and presented it there, and found no one there to pay the note. And, after that, out of an abundance of precaution, I went over to the Citizens' State Bank, which was diagonally across the street from the building formerly occupied by the First National, and I presented the note there, to the cashier of that bank, as the protest shows, and demanded payment there. I think Walter P. Fulkerson was cashier at that time, and there was nobody there that would pay the note; so from there I went to the Trenton National, or might be probable I made the demand there before I went to the other place, at any rate, I presented the note as the protest shows to the cashier of the Trenton National Bank, Mr. R. M. Cook, and demanded payment of the note. R. M. Cook had already been the cashier of the First National Bank at which this note was payable, and he was winding up the affairs of the old First National at the time, and also cashier of the Trenton National. Then I made inquiry as to where Mr. Starr lived, and made a diligent search, as I thought. * * * They thought Mr. Starr lived near or got his mail at Spickards, Mo., and so I made some other inquiries as...