Witkowski v. Maxwell

Cooper, J., delivered the opinion of thé court. On July 16, 1886, the appellant, a married woman, the wife of Simon Witkowski, and a separate trader, was indebted to the appellees, and the indebtedness was evidenced by her promissory note, which was indorsed by her said husband and by L. Witkowski. On that day, in substitution of .her said note, she drew a bill of exchange upon L. Witkowski, who resided in Denver, Colorado, directing him to pay to the order of Simon Witkowski, her husban'd,'the sum of $1,563.90 on the first day of December, 1886. Simon Witkowski indorsed said bill and delivered it to the' appellees, and it was duly accepted by L. Witkowski. At maturity it was presented for payment, and, being dishonored, was protested, and notice given to the- drawer and indorser, against whom the present suit is brought. The sufficiency of the presentment, protest, and notice is contested by the appellant upon grounds to be hereinafter stated. The declaration is in the usual form, nothing appearing therein to show the consideration of the bill, the coverture of the appellant, or her l’esidence. She pleaded her coverture and residence in the state of Louisiana at the time of drawing the bill, and that Simon Witkowski was then her husband, and that by the laws of that state husband and wife could not contract together. The plaintiff replied, setting up the prior indebtedness of the defendant as above stated, and that the bill sued on was executed in lieu and substitution of the note. — 62 — To this replication the defendant demurred, and the same was by the court overruled. This action of the court was brought in review by the first assignment of error. The demurrer was properly overruled. It is not denied by appellant that she was indebted to appellees in the debt which formed the consideration of the bill sued on. Her sole contention is'that th& form of the transaction is that of a promise on her part to pay the sum of money named in the bill to her husband on the default of the acceptor, and that this contract she was disqualified by the laws of her domicile from making. The case of Doll v. Theurer, 6 Rob. (La.), 276, relied on by appellant, decides only that where the wife makes a contract with her husband not authorized by law, the husband has no right of action, and cannot convey one to another person. In Martin v. Drake, 1 Rob. (La.), 218, and Petitpain v. Palmer, Ib., 220, it is clearly intimated that when the real transaction is between the wife and a third person and the real contract is between them, recovery may be had upon the note of the wife made to the husband as a mere conduit, and by him indorsed to the other party to the contract. In the first of these cases, Mrs. Drake had executed her note payable to and indorsed by her husband. The defense was that the note was given for a. slave sold to the defendants, which, at the time of the sale, was afflicted with an incurable disease known ,to the seller. The court said: “The record does not show,, nor is it pretended, that Mrs. Drake was separated in property from her husband, that the purchase was for her individual account and benefit, or that the husband indorsed the note only as her surety to pay a debt of her own. Under the pleadings, we are bound to presume that the purchase was made and the note given on account of the community; if so, the wife cannot bind herself jointly with her husband for a debt contracted during the marriage, either as a drawer or indorser of a note.” Petitpain v. Palmer was upon a similar instrument, and the — 63 — court held that the wife was not liable. To the contention of counsel in argument that the contract was one of surety-ship entered into by the husband for the wife, under the form of an accommodation note with his indorsement thereon, the court replied: “ If this be available, it ought to have been alleged and proved. The wife’s identity is so completely merged in the husbaud that she can no more contract with him than with a stranger; therefore, the drawing or indorsement of -a bill or note by a husband to his wife is void, and she cannot sue upon it, either in his life-time or against his executor after his death; but the husband may indorse it to her in order that she may be the mere conduit and indorse it over to another party, the whole transaction being regarded as the husband’s.” 1 Danl. on Neg. Inst., §241; Slawson v. Loring, 5 Allen, 340. And, though prima facie such note is a nullity, she may be charged on it by evidence aliunde that it was given in her separate business. Ib., § 248; Bank v. Miller, 63 N. Y., 639; Hardin v. Pelan, 41 Miss., 112. The second assignment of error is upon the action of the court upon admitting in evidence so much of the notarial certificate of protest as stated that the notary had given notice of protest to the maker and indorser of the protested bill. Without determining whether the admission of this evidence was or was not erroneous, it is sufficient to say that no reversible error is shown. The deposition of the notary was taken, and the fact that notice wras given is so abundantly proved that the mere admission of other incompetent evidence to establish the same fact would not cause a reversal. In truth, no serious controversy seems to have been made in the trial that some noticé was given; the real contention, so far as notice was involved, was as to the sufficiency of that given. No effort was made by the plaintiffs to prove that notice other than that stated in the notarial certificate was given, which consisted of a copy of the dishonored bill of exchange and a declaration by the — 64 — notary that he had presented the original “at the store of L. Witkowski and demanded payment thereof, which was refused; reason, out of the city; whereupon,” etc. It is contended that the notice should have contained all the facts constituting presentment and demand, and that that given was fatally defective in not showing to whom presentment was made. It was held in Routh v. Robertson, 11 S. & M., 382, that when the notice of dishonor was such that the legal effect of what was stated to have been done would release the indorser, the notice was insufficient. In that case the notice stated presentment and protest on the twenty-sixth of March of a bill of exchange not due until the twenty-ninth. The legal effect of this would have been to discharge the indorser, and, since the notice stated in effect that he had been dischai’ged, it was held that it could not be proved that the presentment and protest were in fact on the twenty-ninth. In Chewning v. Gatewood, 5 How. (Miss.), 552, and Rowan v. Odenheimer, 5 S. & M., 44, it was held that notice sufficient to indicate clearly that the paper had been presented and dishonored, and that the holder looked to the indorser for its payment, was sufficient. In Chewning v. Gatewood the court said: “It has uniformly been held that no particular form of notice is necessary; and, though it be irregular, or even vary in some particulars from the true state of the facts, yet if it be sufficient to put the party upon inquiry, it is good.” See also 2 Am. & Eng. Enc. L., 410, note 1. On the trial of the cause the notarial certificate of protest was introduced, and the deposition of the notary ivas also taken and read in evidence. In fact, the notary was three times examined. On his first examination he stated that on the day of the maturity of the bill he took it to the place of business of the acceptor, which he thought was on Lawrence street, and demanded payment, and, being answered that the acceptor was out of the city, he protested the bill and gave notice to the parties. On his second examination he stated — 65 — that at the time of the protest the place of business of the acceptor was the Star Boot & Shoe Store, 1526 Lawrence street, and that presentment whs made to Mr. Jules Witkowski, the son of the acceptor. The depositions of several parties were taken by the defendant going to show that at the time of the protest another person was conducting business at 1526 Lawrence street, and that the acceptor was then in business on Champa street; also that Jules Witkowski was at that time not engaged by his father, but was doing business for himself on Sixteenth street. ' The deposition of the notary was then taken a third time, and he explained that his second deposition was hastily prepared by the officer by whom it was taken, from notes furnished by him, and that he supposed his answers as written down only stated, as he intended to state, that his impression was that the place of business of Witkowski was on Lawrence street, and that he thought presentment had been made to Jules Witkowski. In this his final testimony he stated that very many pieces of paper were protested "by him, and that it was impossible for him, after so long a time, to speak with absolute certainty as to where and to whom presentment had been made, but that undoubtedly he had at the time presented the paper at the proper place and to the proper person. It affirmatively appears from the evidence of the acceptor himself that at the time of the protest he was in fact out of the city, and to this extent his evidence corroborates the testimony of the notary. The court instructed the jury for the defendant that it devolved on the plaintiff to prove presentment and demand of payment at the proper place of business of the acceptor, and demand upon him or his representative; and by its verdict the jury has found that such was made. We cannot say that the verdict is not supported by the evidence. The notarial act was evidence of the fact that presentment had been made in the manner stated — i. e., at the — 66 — place of business of the acceptor — and though the officer, as a matter of precaution, should have noted at the time to whom presentment was made, his failure so to do does -not invalidate his act, if as matter of fact it was presented to the representative of the acceptor. In Rowan v. Odenheimer the indorser lived in the same city with the maker, and personal notice of dishonor was necessary. The notary was examined as a witness, and stated that he had left the notice at the store of the indorser, but could not remember with whom. There was verdict and’judgment for the plaintiff, which the court refused to disturb, and which on appeal was affirmed. The decision in Duckert v. Von Lileinthal, 11 Wis., 56, cited in the notes to Dupre v. Richard, 43 Am. Dec., 214, and relied on by counsel for appellant as authority for the proposition that “ the protest should show to whom the bill was presented, and if it does not, it will not bind the indorser,” was dis-. approved in Wallace v. Crilley, 46 Wis., 577, and declared to be dictum to the extent that it announced the rule now contended for. As we have said, the notarial certificate was evidence of presentment at the usual place of business of the acceptor, and, he being not found, it was sufficient to demand payment of any one having apparent authority to act for him." We cannot say that the verdict of the jury, by which it is settled this was done, is not supported by competent evidence from which this inference flows. The judgment is affirmed.