Wolf v. Burgess

• Decision Date: 31 March 1875
• Citation: 59 Mo. 583
• Parties: MARCUS A. WOLF, Respondent, v. EDWARD BURGESS, Appellant.
• Court: Missouri Supreme Court

59 Mo. 583

MARCUS A. WOLF, Respondent,

v.EDWARD BURGESS, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

Statement by Reporter.

I. The notary, it appears, delivered notice of protest for defendant, to Shields at his store, and that:

II. Shields remonstrated, stating that Burgess had no place of business there.

Joseph Shippen, for Appellant.

The notary failed to exercise proper diligence. (Gilchrist vs. Donnell, 53 Mo., 591; Sanderson vs. Reinstadtler, 31 Mo., 483; 1 Pet., 578, 582; 3 Hill, 520; 28 Vt., 316; 1 Pars. Notes, 489, Note Y., 490.)R. S. McDonald, for Respondent.

I. The court below properly refused to take the case from the jury, the evidence conflicting as to the notary's measure of diligence. (Winston vs. Wales, 13 Mo., 569; Houghtaling vs. Ball, 19 Mo., 84; Morse vs. Maddox, 19 Mo., 451; McKown vs. Craig, 39 Mo., 156; Chambers vs. McGivern, 33 Mo., 202; Emmerson vs. Sturgeon, 18 Mo., 170; Rippey vs. Friede, 26 Mo., 523.)

SHERWOOD, Judge, delivered the opinion of the court.

Burgess is the indorser of a negotiable promissory note, on which he is sued, and the only question the record presents is in regard to the endeavor made to notify him of the default of the maker. While the authorities are uniform that suitable exertions must be used in this respect, yet different courts have arrived at variant conclusions as to the quantum of effort necessary to be put forth in order to fill the measure of what the law denominates “due diligence.” Our own court, however, has laid down a rule on this point by which, as being just, easy of observance and especially applicable to the case at bar, we are content to abide by. In Gilchrist vs. Donnell, (53 Mo., 591,) the action was brought against the defendants as indorsers on a note payable at the Central Savings Bank in St. Louis; Jefferson county in this State being their residence. And although the notary, after examination of the City directory, inquiry of the bank officers, and also of a firm who had indorsed the note, failing to ascertain where to send the notices, placed them in the City Post Office, addressed to the defendants; yet as the evidence showed from other indorsers, living in East St. Louis, the requisite information could have been obtained, it was held that reasonable diligence had not been exercised, and that the defendants were exonerated from the liability they had assumed. In the present case the defendant had no place of business in the city and no particular stopping place when there. Sometimes he would stop at the Union Savings Association,...