Wetherall v. Garrett

Robinson, J., delivered the opinion of this- Court. That the holder may prove demand and notice, by presumptive evidence, we consider well settled by a long and unbroken series of English decisions, and fully sustained by the best considered of American cases. To require direct proof in every cause, would be to apply a harsh and rigorous rule, in regard to commercial paper, unknown in the proof [463] of other contracts, and subversive of tire plainest principles of justice. Whilst notice of demand and non-payment, is necessary to fix the liability of the endorser, the proof of that notice, must be governed by the same rules of law, which obtain in the trial of all other causes. The holder may prove it by the notary, or by the notarial certificate, or by the acts and declarations of the endorser, or, if necessary, he may invoke the aid of all combined. In this case, the notary was dead, the notarial certificate defective, the notices mailed to the defendant not produced, although notice to bring them into Court was duly served. The plaintiffs were obliged, ex rei natura, to rely upon other evidence to prove due notice of the dishonor of the notes, or they must fail in their action. In such a case, it was eminently proper to instruct the jury, that in finding notice of demand and non-payment, they were not confined to the notarial certificate, or to direct evidence thereof. The letters of the 29th of March, 1852, and July 6th, 1854, written after the maturity of the notes, in which, the defendant voluntarily declared his defence to be fraud, and not want of notice; — his conferences with the plaintiffs in reference to the payment of the notes; — his complaint that it was a heavy claim to pay, and that ho wanted an abatement; - — his promise to send his counsel, Mr. Scott, to arrange the matter; — the interviews with Mr. Scott, and offer by him to pay seventy-five per cent, of the claim; — the examination of the notes with the notarial certificates annexed by the defendant, and not one word of complaint about want of notice, nor one word in denial of his liability at that time, or in any of his interviews with the witness Garrett, who was demanding payment, were facts to go to the jury, which, if believed, authorized them to find due notice of the dishonor of the notes. We do not say that the evidence was conclusive, but that it was legally sufficient, to be submitted to the finding of the jury. ISTor is it an answer, to say that the defendant was a “ layman,” and might not have known that the protests were insufficient. The record shews, tljaC' [464] from the time he discovered his misplaced confidence in Higinbotham, even before the maturity of the notes, he sought the advice of eminent counsel. If the protests were defective,' no one knew it better than Mr. Otho Scott, his legal adviser, and no one would have been more ready, to have exhibited them in Court, as a complete answer to the plaintiffs’ demand. We discover no error in refusing the defendant’s third prayer. It required the Court to say there “ was no sufficient evidence in the cause to prove any other notice, than that annexed to the notarial certificate.’.’ In Davis vs. Barney, 2 G. & J., 403, it was decided that if there were any legal evidence tending to prove the issue, the effect of that evidence was for the jury, also in Richardson vs. Milburn, 17 Md. Rep., 68, it was held “that although the testimony of itself may have been weak and inconclusive, yet if derived from a legal source, and pertinent to the issue, the jury was the proper tribunal to pass upon it.” In this cause, there was evidence independent of the notarial certificate, derived from a legal source, and tending to prove the issue. The defendant’s prayer called upon the Court to exclude this evidence from the jury, and to have granted it, would have been a manifest error. The question of waiver, involved in the plaintiffs’ third, and the defendant’s fifth prayer, we deem it unnecessary to decide, because the verdict was obviously founded upon the first prayer, which-asserted the plaintiffs’ right to recover their whole demand, on the eight promissory notes of twelve hundred dollars each, with interest. In that prayer they claimed that the evidence was sufficient to fix the liability of the endorser for the whole amount. Should however the jury not find the evidence sufficient to prove due notice of the dishonor of the notes, the plaintiffs in their third prayer maintained, that the transfer by Higinbotham to the defendant, dispensed with the necessity of proving notice, as to the seven notes which became due, after the said transfer of the maker’s property. In this prayer the plaintiffs only claimed a verdict for the amount due on the seven notes with [465] interest. The verdict, however, was for the whole amount due on the eight promissory notes, with interest on the .same, and must have been rendered in accordance with the plainiiffif first prayer. (Decided 20th March, 1868.) Concurring with the rulings of the Court, we affirm the judgment. Judgment affirmed,