Sasscer v. Whitely

Le Grand, C. J., delivered the opinion of this court. This was an action instituted by the appellees against the appellant, as endorser of a promissory note made by George Calvert, dated Baltimore, 16th of February 1854, and payable six months after date. The defendant pleaded the general issue.. The note matured on the 19th of August 1854, and was placed in the hands of a notary to demand payment. The record states that the notary, having ascertained that the maker of the note had no residence in the city of Baltimore, and no place of business there, and being unable to ascertain where he resided, went to the post office, exchange, and court house, in the city of Baltimore, and inquired for the residence of the maker, and for the residence and post office of the appellant, and not being able to ascertain the residence or post office of either of said parties, protested the note for non-payment. A notice of protest was, on the same day, directed to the appellant, at Baltimore, and put in the post office of that place. There was no question made at the trial as to the making and endorsement of the note. The defendant gave evidence that for the last forty years he has resided near Upper Marlborough, Prince George’s county, and that his post office, during all that time, has been at f&e last, mentioned place. He also gave in evidence that, for the last thirty years, he has had extensive business transactions in the city of Baltimore, both with commission houses and banking institutions,- and that the notary could have easily ascertained his post office and residence, had he made inquiries at the said banking institutions and commission houses. Upon the whole of the evidence the defendant prayed the court to instruct the jury that there was no sufficient evidence of notice to bind the endorser in this action, and that the said notarial protest, so as aforesaid offered in evidence, was insufficient for that purpose; but the court overruled the prayer of the defendant’s counsel, and permitted the said notarial protest to go to the jury, notwithstanding the evidence of the defendant, as sufficient evidence to bind the defendant, provided they should find that the said defendant endorsed said note after it was signed by the drawer. To which opinion the appellant excepted. [103] It is the correctness of this ruling of the circuit court that is now before us for review. The question presented by the prayer of the defendant is simply this: What kind of notice is required to bind an endorser who endorses a promissory note dated at a place different from the county of his residence, and other than that of the maker ? The proof in the cause shows the note was dated “Baltimore,” and that both the maker and endorser resided in Prince George's county, in this State. The notary went to tile court house, exchange, and post office — ■ having ascertained that the maker of said promissory note had no residence or place of business in the city — and “ could find no person at either of said places who would pay the same for honor or on account of the maker of said note.” He protested the note for non-payment, and “addressed written notices to the said endorsers of the said promissory note, and informed them that it, had not been paid, payment therefor having been demanded and refused, and that they would be held responsible for the payment thereof.” The notice for the appellant was addressed to him at Baltimore, and put in the post office, the notary “having made diligent inquiry at the court house, post office, and exchange, and not being able to find any person at any of said places who could inform him where the endorser (the appellant) resided, or of the post office nearest to his residence.” There is no evidence in the record of any custom existing, in the city of Baltimore, in regard to the usual mode of making demand and giving notice of non-payment, and, therefore, this case must be determined on the generally recognized principles of commercial law, applicable to negotiable paper. What are these principles? It may be stated, as one of universal application, that when a note is dated at a particular placo, and no other place designated as that of its negotiation and payment, “the presumption is,” says Chancellor Kent, 3 Vol. Com., page 96, “that the maker resides where the note is dated, and that he contemplated payment at that place.” “But,” continues he, “ it is presumption only; and if the maker resides elsewhere within the State, where the note falls due, and that be known to the holder, demand must be made at the maker’s [104] place of residence,” or place of business. This principle is recognized and adopted in Nailor vs. Bowie, 3 Md. Rep., 256, 257, and is conclusive of the case now before us. The note was dated “Baltimore,” and the presumption was, therefore, that it was there payable; and although this presumption is not so absolute’as to prevent contradiction, yet, in this case, no evidence was adduced on the part of the defendant to show that the ^holder” of the note was aware that the maker and endorser did not reside in the city of Baltimore. As to diligence and thoroughness of inquiry, the notary says he made diligent inquiry, but could not find any one to give him information of the residence of the parties. It may not be gratuitous to remarle, that when persons give and endorse notes, they ■should take care to see they provide for the place of demand and of notice to the endorsers. By omitting this precaution, and in the absence of the knowledge of the holder to be shown in proof, the place of the date of the note is to be taken as the place of residence of the maker and endorser. See the case of the Bank of Columbia vs. Fitzhugh, 1 H. & G., 248. Judgment affirmed.