Wetherall v. Claggett

Robinson J., delivered the opinion of this Court. It was admitted by the appellant’s counsel that the protests were legal and competent to prove demand upon and refusal by the maker. The first exception was therefore abandoned. The objections to the evidence of Latimer, raised by the second bill of exceptions cannot be sustained. The only question at issue in the trial below, was whether the defendant had received due notice of the dishonor of the notes. It is conceded that the protests are insufficient to prove notice, because they do not inform the endorser, that payment was demanded and refused. The plaintiff must therefore invoke' the aid of other evidence, or he must fail in fixing the liability of the endorser. In this State the law is well settled, that the holder may supply auy omission in the notarial protest, however material, by independent proof, provided it be not inconsistent with or contradictory of that contained in the protest. In Hunter vs. Van Bomhorst, 1 Md. Rep., 504, the notarial certificate was insufficient, because it did not allege that the notes were at the bank, on thfe day of maturity, and [475] this omission, fatal in itself, was supplied by other testimony. The Court said it was “ no contradiction of the evidence contained in the protest, but merely enlarges it, by supplying material omissions.” And in Nailor vs. Bowie, 3 Md. Rep., 252, the protest was defective because, as in the case now before ns, it did not inform the endorser of a demand and refusal, and yet the Court held that the omission could have been supplied by other evidence. In these cases, the notarial certificates were offered in evidence by the plaintiffs. In the subsequent case of Sasscer vs. The Farmers’ Bank, the protests were also insufficient, inasmuch as they did not aver non-payment of the notes by the maker. Objection was made as in this case, to the admissibility of evidence to cure this defect, upon the ground that having relied upon the notarial protest to prove notice, the plaintiff could not offer any evidence adding to, or contradicting the same. But this Court held that the evidence did not contradict the record, and Judge Masos said that “ in the case of Graham vs. Sangston, 1 Md. Rep., 59, and Hunter vs. Van Bomhorst & Co., ibid, 504, this Court recognized the right of the plaintiff to offer evidence of notice, in addition to, if not inconsistent with that contained in the protest;” “and, therefore, when any material circumstance of the transaction has been omitted in the record, it is but proper that the omission should be supplied.” It was insisted upon by the appellant’s counsel, that there was a marked distinction between Sasseer’s case and the one now before the Court, because in the former, the notarial protests were not offered as evidence per se by the plaintiff. But the Court held in that case, that whether they were offered in evidence, or for the purpose of refreshing the recollection of the witness, that having placed them in the hands of the notary, and their contents having been submitted to the jury, whether by the plaintiffs or defendants, they thereby became evidence in the cause, and entitled to as much weight as if they had been originally offered for that purpose.” In this case, the testimony of Latimer does not contradict, but merely proves facts [476] in addition to those disclosed by the protests, and was therefore admissible. The defendant’s prayer in the third bill of exceptions was properly refused. It called upon the Court to say that the evidence in the cause was not sufficient to prove due notice of the dishonor of the notes. There was evidence in the cause, derived from a legal source, pertinent and tending to prove the issue, and it would have been an error in the Court, to have granted the prayer. The notary was dead, and as in the case of Brandt, surviving partner of Basil R. Spalding & Co., vs. Griffith’s Ex’rs, ante 436, the notarial certificate was defective. The witness Latimer, was the chief clerk to the notary, and he proves that when he went with Mr. "Williams, the late notary in 1848, the printed form of notices to endorsers did not contain the words “payment therefor having been demanded and refused;” but that in consequence of a decision in New York, a change was made in the form of the notices, and these words added. That all the old forms were destroyed, and that in October, 1851, when these notes became due, but one form of notice was used, and that contained the words “payment therefor having been demanded and refused.” That he remembers perfectly well the Higinbotham notes, because he and the other clerks were informed that there was a question of fraud in regard to them, and were therefore careful in protesting them. He identifies the notes, as having been handed to him for protest, by his private mark upon them, and that he is confident, the notices made out by him contained the words “payment therefor having been demanded and refused.” This evidence, if believed by the jury, in addition to the proof in the notarial certificate, was in our opinion, legally sufficient to prove due notice of the dishonor of the notes. We also concur with the Court in granting the plaintiff’s prayer. The execution and endorsement of the notes being admitted by the defendant, the Court committed no error in assuming the facts to be true. Waters’ Lessee vs. [477] Riggin, 19 Md. Rep., 536. Moreover, if defective in this respect, it does not appear from the record, that the objection, was made in the Court below. Act of 1862, ch. 154. (Decided 20th March, 1868.) Finding no error in the ruling of the Court, we affirm the judgment. Judgment affirmed.