Graham v. Sangston

Le Grand, C. J., delivered the opinion of the court. This was an action of assumpsit instituted by the appellees in Calvert county court, as endorsees of a promissory note against the appellant as endorser. The right of the appellees to recover is denied on the ground, that appellant had not such notice of the dishonor of the note, as is required by the law, to fix the responsibility oi an endorser. The note was made negotiable, and payable at the Farmers Bank at Annapolis. The plaintiffs below, to “prove the demand upon the drawer of the note, and notice of nonpayment thereof to the defendant, offered the protest of the noté’’’ in evidence, from which it appeared, that when the note became due he demanded payment at the Bank which was refused, and that he gave notice to the defendant, one of the endorsers, by leaving the notice “at his room in the City Hotel, Annapolis, the same day.” The protest, after stating the presentation, demand, refusal, &c., proceeds to say, “and on the same day 1 addressed written 'notices to the endorsers of the said note, therein informing them that they were severally held liable for the payment thereof.^ In addition to the protest, the plaintiffs proved that a short time after the death of the maker of the note, which occurred in May 1847, and before the commencement of this suit, the defendant requested the witness to ask the indulgence of the plaintiffs upon his responsibilities, in their hands as endorser for Harris, and that they, the plaintiffs, should first get what they could from said Harris, and that he would pay the balance; hut without proving the defendant specified the note in this cause, ■ as the note for which he was responsible, and without stating what note lie had endorsed. The first exception states, that the only evidence offered to prove notice to the defendant was ike protest; and on this evidence, that is to say the 'protest, the defendant asked the court to instruct the jury, that the said protest was not sufficient for that purpose; but the court refused to give this direction, and instructed the jury, >haf. the protest was sufficient to show a due demand and non — 66 — payment, and due notice to the defendant of such demand and non-payment.- From this statement, it appears that the only question raised by the first exception is, did the- protest constitute sufficient evidence of notice to the defendant, of demand and non-payment ? There- was no question raised, and none determined by the court in regard to the’ testimony offered, to show that the defendant had agreed to pay, as testified to by the witness Sangston, and under the act of 1825, ch. 117, that evidence must be considered, so far as the decision of this court is concerned, as not before them on the first exception. The liability of an endorser of a promissory note is contingent, and to fix it, it is essential certain things should be done by the-holder. It is indispensable the endorser should have notice of demand and non-payment. Prior to the passage of the- act of 1837, ch. 253, in the case of inland bills and promissory notes, the proof of such notice had to be proved independently of the protest of the notary. By that act it is provided', that a protest duly made by a notary public, of a promissory note, for non-payment, or of a bill of exchange, whether foreign or inland, for non-acceptance or nonpayment, shall be prima facie evidence of such non-payment or non-acceptance, and of the presentment of such note for payment, or of such bill for acceptance or payment, at the time and in the manner stated in the protest; and by its second section it is declared, that when such protest shall state that notice of such non-payment, or non-acceptance, has been sent or delivered to the party or parties to such note or bill, and the manner of such notice, such protest shall be prima facie evidence, that such notice has been sent or delivered in the manner therein stated. This act in no manner alters the law in regard to the necessity of notice, nor, in regard to the character of the notice; its whole office is to make the protest of the notary prima facie evidence, that notice has been given in the manner and of the character described in the protest, leaving the question of the sufficiency of the notice to be determined by the law, — 67 — as it was prior to the passage of the act. This being so, the question is, was the notice given such as is required by law? The notice as stated in the protest, (and it was the only evidence offered on this point,) is as follows : “And on the same day I addressed written notices to the endorsers of the said note, therein informing them, that they were severally held liable for the payment thereof.” It says nothing of a demand nor of non-payment. It must be recollected that the protest does not establish the fact, that the defendant had notice of the demand and nonpayment, although it does, that such demand had been made and payment refused. There is no evidence of the protest having been sent to endorsers, but merely a notice, informing them “that they were severally held liable for the payment” of the note. All the authorities, without exception, either in England or this country, hold it to be indispensable, that the endorser should have notice of demand and non-payment. It is true that in regard to the evidence of such notice, there has been some difference of opinion among the courts, but in regard to the notice itself there has been none. The result of the authorities on this head is, that although no precise form of words is necessary to be used in giving the notice, yet, it is indispensable, that it should either expressly, or by just and natural implication, contain, in substance, the following requisites: — 1st. A true description of the note, so as to ascertain its identity. 2nd. An assertion, that it has been duly presented to the maker at its maturity, and dishonored. Story on Promissory Notes, sec. 348. And, in section 350, Judge Story observes in regard to the statement in the notice, that the note has been duly presented and dishonored, — “this statement is essential to establish the claim, or right of the holder, or other party, giving notice; for, otherwise, he will not be entitled to any payment from the endorser. It will be sufficient, indeed, if the notice sent necessarily, or even fairly implies, by its terms, that there has been a due presentment and dishonor at the maturity of — 68 — the note. But mere notice of the fact, that the note has not been paid, affords no proof whatever, that it has been presented in due season, or even that it has been presented at all; for it may be, that the holder means to rely upon some legal excuse for non-presentment.” In the case where a note is in terms, as is the case with the one sued on, or by tacit or express consent of parties, payable at a bank, it is sufficient, the note is there at maturity, ready to be delivered on payment, should the maker come to pay it, 12 Mass., 172. 17 Mass., 172. And if the maker does not go to the bank and pay it on the day when it becomes due, it is dishonored and no other demand is necessary. 3 Metcalf¢, 497. In the case before us, by the express terms of the note, it was made negotiable and payable at the Farmers Bank, at Annapolis, and therefore it was not necessary any demand of payment should have been made: the failure to pay by the maker was the dishonor of the note. Bank of United States vs. Carneal, 2 Peters, 543. But this does not dispense with notice to the endorser that it had been dishonored. In the case of Mills in Error, vs. U. S. Bank, 11 Wheat., 431, Judge Story, delivering the opinion of the court, when referring to the objection that the notice did not state that payment was demanded at the hank, when the note became due, says: “It is certainly not necessary that the notice should contain such formal allegation. It is sufficient that it states the fact of non-payment of the note, and that the holder looks to the endorser for indemnity.” Adopting the principles of these cases, (and they are recognized by tribunals of the highest character,) all that we hold it was necessary in this case to have done, was to inform the endorsers that the note was due and unpaid, but that it was not necessary to have informed them they were held liable, this followed as a necessary consequence, to use the language of the court in Mills vs. U. S. Bank, 11 Wheat., “A statement of non-payment and notice is, by necessary implication, an assertion of right by the holder, founded on his having complied with the requisitions of law against the endorser.” — 69 — In the case before us, so far as we are informed by the testimony, what was required to be in the notice was omitted, and what was not essential was placed there. For these rea.sons we think the court erred in rejecting the prayer of the defendant contained in the first bill of exceptions, and also in giving the instruction, that the protest was sufficient evidence of notice of demand and non-payment. The only additional evidence in regard to notice, is that mentioned in the second exception, which shows that the defendant was a member of the legislature when the note became due, and that he boarded at the City Hotel, the witness, however, not recollecting whether he was in Annapolis between the 20th and 30th of January 1847. This testimony in no manner relates to the form of the notice, and, therefore, what has been said in regard to the first exception, is applicable to the second, so far as that is concerned. We are of opinion, that the court ought to have given the instruction asked for by the defendant, and not have given the direction which it did. But inasmuch as we think this case ought to go back under a procedendo, (for the plaintiffs may be able to show, by the notary or other person, that the legal notice was given to defendant,) we deem it proper to express our opinion in regard to the additional testimony in the second exception. We hold the facts stated by the witnesses, if believed by the jury, would justify the court in instructing them, that the delivery of the notice at the room of the defendant, in Annapolis, was a proper delivery. It is undoubtedly true, as a general rule, that the notice should he sent to the place of residence of the party, hut this does not exclude a delivery to himself at any other place, nor ilie delivery at such place where he is presumed in law to be. The case in Yerger, 1, does not decide, that a notice sent to Washington to a member of Congress, would not be a compliance with the requisitions of the law, but merely, that it is not incumbent on the holder to send it there, and that if sent to his residence, it will he sufficient. The case clearly implies, however, that a notice sent to Washington, directed — 70 — to a member of Congress, while Congress was in session, would be sufficient; and the case of Chonteau vs. Webster, 6 Metcalfe, 6, expressly decides such direction would be sufficient. Although it was admitted in that case the defendant was in Washington Avhen the notice was sent, the court do not decide the question on that ground, but on the general principle. The court say: “The fact of domicil is one circumstance only, in determining Avhere notice shall be given. A man may retain his domicil at a place, though in fact personally absent therefrom, and absent with his family for years. Such is the condition of a President of the United States, or cabinet minister, residing at Washington, or of an ambassador in a foreign country. His domicil is not thereby changed; but yet we cannot doubt, that notice to such public officer, at the place of his actual residence, to which, for the time being, he is fixed, by his public duty, Avould be good. Yet the only distinction between a President of the United States and a senator, is, that the residence of the former at Washington is someAvbat more protracted, and uninterrupted by the intervals between sessions of Congress, than that of the latter.” The court in that case recognize the rule, that notice should be given at such place that it will be most likely to reach the endorser promptly, and rely upon 1 Peters, 578, and 2 Peters, 553. Judgment reversed and procedendo awarded.