Coster, Robinson & Co. v. Thomason

COLEMAN, J. This "was abaction brought by theiplaintiff in the court "below against the defendants, to recover on-a bill of exchange drawn on the first day of -January, 1846. by ¡Ebene--zer Hearn on Messrs. -R. L. Walker & Co», Mobile, forffhe payment, four months after date, to Wm. Kitchen, of $1260, and endorsed by -William Kitchen and Coster, Robinson & Co. By the bill- of exceptions it appears that’-the defendants objected to the-introduction'of said bill of exchange, as evidence under the first count in the declaration, because the bill declared on purported to have been drawivby Ebenezer u HeaVne,” while that offered in evidence appeared to be drawn by-Ebene-:-zer “ Hearn.” We-think, clearly, that there was no error in the overruling of this objection by the court. Though there is a variance of one letter in spelling - the two names, they are pronounced precisely alike, and idem'sonans, they are in-consideration of law the same. In Schoober v. Ashurst, (1 Littell 216,) it was held that “ Josiah” and'“-Josier” should be-consid-■cred the same name, the difference in ..pronunciation being -too small to amount to a variance- The plaintiff then read as evidence -to the jury said bil-1 of exchange, and the .protest and certificate of -the notary ;publie, showing the proper demand and rofusalof .-payment of-the bill, .and averring notice of the same to the defendants in these words: f£ Notice of protest -left at the offices of the first and seeond-en-•dorsers.” The defendants then introduced «/witness who stated,'in sub.stance, that the-firm of Coster, Robinson & Co. was composed of George Coster, Levi Robinson, and one Robert L. Walkér .; that the firm -was dissolved on the last of February,--or first March, 1846, after which time they separated; that after said dissolution, witness and said Coster were the acting clerks Tor David Blair & Co., who occupied the same house formerly - occu [720] pied'by Coster, Robinson & Co., and'were the only persons employed' in the store during the month of May,, 1846; that at that time said Robinson was up the country, .and witness did not know where said'Robert L. Walker was, nor whether he then had any office in Mobile. “ Witness also stated that he never saw any notice of. protest of the bill of exchange sued on; that he had known the defendant Coster ever since the year 1838 p that he had been constantly employed in the same store and buisiness with said Coster, for about thirteen years, and their habits of business and intimacy had been such that the witness had no doubt, if said Coster had received notice of protest of' said bill, it would at once Have been communicated to witness,, but that he had never heard of any such notice having been received by said Coster. The plaintiff’s counsel moved the court to exclude from the jury this last statement, to wit, all that the witness stated tending to show that if Coster had received notice of the protest, then the witness would have been informed' of it.” The court very properly excluded said statement. It was an expression of opinion, and. not a statement of' a fact within the knowledge of the witness,.and was therefore inadmissible as testimony. The plaintiff then introduced the notary who protested said bill, who stated “ that he did' not recollect any thing’ about said' protest; that he knew it was made by him because he had so-certified ; that he could only state that it was his habit, when a dissolution of a firm whose name was on negotiable paper had taken place after the paper .was made, and before protest, to give notice at the office of some one member of the firm,.and he had no doubt he had done it in this instance.”' This was all the evidence in the case, upon which, the court charged the jury, that if they believed notice of protest had been left at the office of any one of the partners of the late firm of Coster, Robinson & Co. on the day the protest was made, this was sufficient to authorize a verdict for plaintiff. To this charge the defendant’s counsel excepted, and asked the court to charge, “ first, the plaintiff cannot recover unless he shows that some attempt was made to give personal notice of protest to Coster, Robinson & Co., or one of them, and on failure to find any of them, that then the next best method of giving them notice had been resorted to; secondly, the plaintiff cannot recover721 in the absence of proof of the notice having'been; given during business hours; thirdly, if notice may have been left only at the office of Robert L. Walker after the dissolution of the firm of Coster, Robinson & Co., this would not be sufficient to bind the other parties; fourthly, that the evidence in this case is not sufficient to authorize a verdict for the plaintiff; fifthly, that in order to entitle the plaintiff to recover, it is not sufficient for him to show merely that notice of protest was left at the of-fieo of one of the late firm of Coster, Robinson & Co.; if the* evidence goes no further than tjiis, the jury must find for tho defendant; sixthly,, that the evidence contained in the protest is not sufficient evidence, by itself, to entitle the plaintiff to recover.” The court refused' each of these charges as asked by the defendant, and charged the jury that if they believed the notice of protest was left on the day of protest at the office of any one of the then late firm of Coster, Robinson & Co., this would be sufficient, without any other proof whatever, to entitle the plaintiff to recover. We believe the law to be well established, that where a bill endorsed by a partnership is dishonored after a dissolution, notice thereof to either one of the late partners is sufficient to bind all. —Collyer on Part. 899, 443; Story on Bills, 836 ; Chitty on Bills, 530. In Brown v. Turner, (15 Ala. 833,) it was decided, that when a bill of exchange has been accepted by two persons as partners, who at maturity of the bill have dissolved their partnership, and are also absent from the place of their residence, a demand made of the agent of one of the partners is sufficient; consequently there was no error as to the number of the partners notified. We think, however, that the farther ruling of the court in the case was in cellision with the law as decided in the case of Rives v. Parmley, (18 Ala. 256.) In both of these cases tho proof of notice of non-payment, &e., as contained in the notarial certificates, is the samo; the same words (“ notice of protest left at the offices”) being used in both certificates. The court decided, in the case referred to, that the certificate of the.notary did not contain evidence of such diligence as tho law requires ttj charge an endorser; that to charge the drawer or endorser of a bill, by notice left at his place of business or residence, it should be delivered to a clerk, if there be one at the former place, or to [722] •some proper person aft the latter, if any such there be, or it should be certified that no one could be found on application at such ¡place. It is contended, however, that the verbal evidence of the .■notary furnished, in this case, additional proof of notice, &g. We are not disposed to controvert this, hut we -think that the jury must have been led to believe, from the charges given, and those réfused by the court, that the evidence-contained in the notarial, certificate alone, and without the other evidence in the case, was, in the opinion of the court, sufficient to authorize a verdict for the plaintiff. In this we think there-was error, and therefore order the judgment to be reversed-an$. the cause remanded.