Vogel v. Starr

• Decision Date: 29 June 1908
• Citation: 112 S.W. 27,132 Mo.App. 430
• Parties: JOHN VOGEL, Appellant, v. O. J. STARR, Respondent
• Court: Kansas Court of Appeals

112 S.W. 27

132 Mo.App. 430

JOHN VOGEL, Appellant, v. O. J. STARR, Respondent

Court of Appeals of Missouri, Kansas City

June 29, 1908

Appeal from Grundy Circuit Court.--Hon. George W. Wanamaker, Judge.

Reversed and remanded.

P. C Stepp, W. D. Stepp and O. N. Gibson for appellant.

(1) When notice of dishonor is mailed, it should be directed to the endorser at his nearest postoffice. Randolph on Com Paper, sec. 1279; Ireland v. Kip, 11 Johns. 231; Ferris v. Saxton, 1 So. 1 (N. J.); Bank v. McGruder (Md.), 6 Harr. & J. 172, 14 Am. Dec. 271-6; Foreman v. Wikoff, 16 La. 20, 35 Am. Dec. 212; Gist v Lybrand, 3 Ohio 307, 17 Am. Dec. 595; Mead v. Carnal (La.), 6 Rob., 73, 39 Am. Dec. 332; Sanderson v. Reinstadler, 31 Mo. 483; Woods v. Neeld, 44 Pa. St. 86; Bank v. Compton, 3 Rob. 4; Nicholson v. Marders, 3 Rob. 242. (2) This general rule is subject to the qualification that although the notice is sent to a more distant office, the service will nevertheless be good, if it further appears that the endorser was accustomed to receive mail there. Bank v. Lane, 3 Hawks 332, 14 Am. Dec. 595; Coal Co. v. Ryerson, 1 Spenc. 129, 40 Am. Dec. 217; Reid v. Payne, 16 Johns. 218; Mead v. Carnal (La.), 6 Rob. 73, 39 Am. Dec. 552; Sanderson v. Reinstadler, 31 Mo. 483; Barrett v. Evans, 28 Mo. 331. (3) But notice sent to the nearest postoffice is a sufficient service in any case. Coal Co. v. Ryerson, 1 Spenc. 129, 40 Am. Dec. 217; Bank v. Lane, 3 Hawks 332, 14 Am. Dec. 595; Bank v. Lawrence, 1 Peter 578; Mercer v. Lancaster, 5 Pa. St. 160; Sanderson v. Reinstadler, 31 Mo. 483; and other cases cited under point 1, supra. (4) Notice will be sufficient, although sent to a wrong place, if the holder has used due diligence in ascertaining the place to which it should be sent. Randolph on Com. Paper, secs. 1286-8, 1279; Bank v. Phillips, 3 Wend. 408; Herbert v. Servin, 12 Vroom 225; Harris v. Robinson, 4 How. 336, 11 Law Ed. 1000. Marsh v. Barr, Meigs 68; Hunt v. Nugent, 18 Miss. 546; Bank v. Pierce, 3 Ala. 321; Palmer v. Whitney, 21 Ind. 58; Fugitt v. Nixon, 44 Mo. 285-8; Bank v. Bender, 21 Wend. 643, 34 Am. Dec. 281. (5) Where the facts are undisputed, what constitutes due diligence is a question of law. Lineville v. Welch, 29 Mo. 203; Fugitt v. Nixon, 44 Mo. 285-8; Sanderson v. Reinstadler, 31 Mo. 483-7.

A. G. Knight and W. G. Collison, for respondent, filed argument.

OPINION

JOHNSON, J.

Action against the endorser 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 endorsed 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 endorser, lived in the country about twelve 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 endorser 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, Wisconsin, 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, Missouri, and so I made some other inquiries as to where Starr lived, at the banks, Mr. Cook and the Citizens Bank also, and I wouldn't say positively as to who else I did inquire of, . . . I mailed the notice to Starr at Spickards, Mo. Q. Your information was that that was his post office? A. From information I got from inquiring of Cook and Fulkerson and the clerks in each bank, and I wouldn't say positive but I was in Knight & Harber's office at the time and Dale Stepp took my affidavit to the notice; and my impression is I made inquiry among them as to where Mr. Starr lived, but I may be wrong about that; I wouldn't state positively; and I mailed the notice. I have stated in a general way what had been done, that is in regard to protesting of this note. And it was signed and sealed by me and I put that in an envelope and mailed it to Mr. Starr at Spickards, Mo. Put a two cent stamp on it and put it in the post office; in the same way to Millard, except his was addressed to Hanover, Rock county, Wisconsin."

Starr did not receive the notice until some three months after it was mailed, for the reason that Tindall and not Spickards was his post office. The farm he occupied as a tenant was about one mile nearer Spickards than Tindall, either by wagon road or as the crow flies, and Spickard, though a small town was much larger than Tindall. But Starr had made the latter place his post office address while living on a farm nearer to it than to Spickards and continued to get his mail there. No doubt is suggested in the evidence of the good faith of the notary and of plaintiff's collecting agent in mailing the notice to Starr's nearest post office, nor do we find anything indicative of bad faith on the part of plaintiff, the owner of the note. He was not in Trenton on the date of the protest, nor had he imparted to his collection agent the information he possessed respecting Starr's post office address. Had he done this, we perceive nothing in the facts known to him to support the conclusion that his collection agent and the notary might have acted differently. The farm where plaintiff lived was, perhaps, two miles from that occupied by Starr. While the...