Tate v. Sullivan

Stewaet, J., delivered the opinion of the Court. To facilitate commercial operations, the notarial protest is made by law prima facie evidence of the presentment of the notes for payment, to the maker at the time and in the manner therein stated — its non-payment and notice thereof sent or delivered to the endorser as stated therein. The appellee had a right to offer the protest as prima facie evidence of the contents, and there was no error in the first and second exceptions ; but its sufficiency without additional evidence to fix responsibility for the payment of the note upon the appellant as endorser, was quite a different question. See Nailor vs. Bowie, 3 Md., 258. [470] In the third exception, the question as to the sufficiency of the protest arises, when the objection is made to the instruction of the Court to the jury under the appellee’s prayer, which assumes that the evidence in the case was sufficient, if found by the jury, to entitle the appellee to recover. The first part of the instruction virtually affirmed that there was sufficiency of proof of demand and refusal to pay,'on the part of the maker, to show that the appellee, as the holder of the note, had performed all the conditions incumbent on him, to make the appellant as endorser responsible for its payment. Due demand upon the maker and due notice to thé endorser of its non-payment, were conditions precedent to the appellee’s right to recover. Compliance with these conditions to make the endorser responsible, is not an idle ceremony, but an imperative performance of duty. This rule is obligatory, and the endorser has the right to a' strict observance of its requirements. Story on Prom. Notes, see. 201; Whiteford vs. Burckmyer & Adams, 1 Gill, 142. Where there is no dispute about the facts, what is due diligence,.is a question of law for the Court to determine; and where the facts are submitted to the jury to be ascertained by their verdict, they must be sufficient to constitute due diligence. If the proof is insufficient in law, it is error to refer the question to the jury. Orear and Berkley vs. McDonald, 9 Gill, 354. From the contents of the protest, assuming them to be true, and from all of the evidence, there has not been due diligence, either in the demand upon the maker or in the,, notice of non-payment to the endorser, the appellant, to justify the Court below in granting the appellee’s prayer. Whiteford vs. Burckmyer, 1 Gill, 144; Nailor vs. Bowie, 3 Md., 258. If the maker of the note resided in Baltimore, and such was the proof, demand should have been made upon him, or left at his place of abode. 3 Kent’s Comm., 95, 97; Story on Prom. Notes, see. 235. There is no proof whatever that the holder of the note, the appellee, did not know of his resi471 donee in the city of Baltimore. He was a witness in the cause, and might have given some information upon the subject. Enquiry for him, by the notary, at the post office, exchange and court house was not alone sufficient. Efforts should have been made to learn if he had a residence in the city. The Directory might have been examined. The holder of the note is not permitted to sleep in performing what is required of him, and his agent, the notary public, as an agent and officer, must be vigilant and industrious in the discharge of his duty. Staylor vs. Ball & Williams, 24 Md., 199, 200; Story on Prom. Notes, p. 436, n. His notarial protest is an important instrument of evidence, importing that diligence has been used in obtaining necessary information, and in the discharge of the trust. The law makes his certificate prima fade evidence of its contents, as stated in the same, but nothing more. Nor was there sufficient en-quiry as to the residence of the endorser. If the holder of the note knew of the residence of the endorser in Anne Arundel county, (and there is nothing shown to the contrary,) notice should have been sent to his nearest post office. Bell vs. Hagerstown Bank, 7 Gill, 217; Bank of Columbia vs Magruder, 6 H. & J., 172; Moore vs. Hardcastle, 11 Md., 490; Story on Prom. Notes, see. 316, and note 2. The notary public may have been ignorant as to the endorser’s residence, but not so the holder of the note, who might, by due diligence, have informed himself. There is no evidence that the appellee gave himself any trouble whatever about the matter, or used the slightest effort to become informed of the residence of the appellant. “The holder must not allow himself to remain in a state of passive and contented ignorance.” Chitty on Bills, 486. He seems to have trusted to the industry and vigilance of the notary, and run the hazard of his using the proper means. The law will not sanction such laehes. Haley vs. Brown, 5 Barr, 178. Besides, the prayer of the appellee might mislead the jmy from its ambiguous character, involving two distinct propo [472] sitions. The first part of it assumes that the proof of demand and refusal is sufficient, if believed by the jury, to make the appellant answerable as ¡endorser, independent of any proof of a waiver on the part of the appellant, by promise or admission. The second part assumes that the acknowledgment and promise to pay, if believed by the jury, were sufficient to defeat the plea of limitation, upon the hypothesis that there ■was sufficient proof of notice of demand, and of the protest to bind the appellant. The acknowledgment is not relied upon as a waiver on the part of the appellant, to dispense with demand and refusal, and notice, but to avoid the plea of limitation, — and no question of a waiver is presented. The appellant’s admission and promise, if believed by the jury to have been made, might be relied upon to defeat limitation, if the responsibility for the payment of the note was fixed upon the appellant by sufficient proof of demand and refusal. The second part of the instruction is connected with, and made dependent upon the first, and if that is defective, the whole is objectionable. If a waiver of the conditions to bind the appellant had been relied upon by the appellee, and there was sufficient evidence to be submitted to the jury to sustain it, that question ought to have been directly presented. If the appellant, with full knowledge of the omissions on the part of the appellee or the holder of the note, assumed the liability, and promised notwithstanding, to pay the note, he might dispense with and waive his rights as endorser. He has the privilege of insisting, strictly, upon his rights, or he may if he think fit, with a knowledge of all the facts, abandon them. Staylor vs. Ball, 24 Md., 201; Story on P., Notes, see. 361. The rule was adopted for his benefit and security, and he has the right to waive the consequences of the holder’s neglect. But before his acknowledgment and promise to pay the note, can operate as a waiver of his privilege, and place him in the same condition as if demand [473] and notice bad been duly given, there must be proof that be bad knowledge of the facts, that no such demand and notice had been given. Beck vs. Thompson, 4 H. & J., 531. If his promise or acknowledgment is relied upon as proof for that purpose, it must “ amount to an admission of the right of the holder, or of a duty and willingness on his part to pay ■ ” or if the knowledge is to be implied from the conduct and acts of the endorser, they must as clearly import a like admission or duty. Story on Prom. Notes, sec. 363. But no question of waiver having been presented under the instruction, no conclusion could be fairly deduced by the jury, in regard to any admission of the appellant, except as applicable to the plea of limitation. (Decided 16th April, 1869.) Judgment reversed and procedendo ordered.