Wolf v. Lauman

Bates, Judge, delivered the opinion of the court. This was a suit against the endorser of a negotiable promissory note. The petition averred demand of payment of the maker and refusal, and notice to the endorser of the presentation of the note, demand of payment and non-payment. The answer put in issue these averments : 1. As to the presentation of the note to the maker and demand of payment, there was none; but the plaintiff showed such a diligent attempt to find the maker as excxrsed an actual demand. The court held that sufficient. The statute requires the court to disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party ; and no judgment shall be [578] reversed or affected by reason of such error or defect. The statute also provides, that no variance between the allegation in the pleading and the proof shall be deemed material unless it has actually misled the adverse party to his prejudice; and the fact that he was thus misled must be shown by affidavit. Here there was no such affidavit, and although there was clearly a variance between the allegation and the proof, yet as the defendant has failed to show, in the manner the statute requires, that he was misled to his prejudice, we cannot so suppose. If it had been so, the error could have been corrected in the Circuit Court upon terms just to him. 2. The notice was in the following form: “ St. Louis, August 18, 1860. “ Mr. Frederick Lauman. “ Sir : Take-notice that a negotiable note for $200, dated St. Louis, June 15, 1860, payable sixty days after date, and made by Nicholas Buttner, in favor of Jacob Seifred, endorsed by said Jacob Seifred and by yourself, has matured and not been paid. I, therefore, look to you for payment of said note with interest, damages, and costs. “ Respectfully, Fbed. Wole.” The objection to the notice is, that it does not state that a demand was made upon the maker, or any circumstances to excuse such demand. The note was described with certainty, and the- facts stated of its maturity and non-payment; and that the endorser was looked to for payment. Without going over the numerous cases, which in some points very much resemble this, it is thought sufficient to inquire whether this notice answers the purpose for which a notice is designed. The general purpose of the notice is to inform the endorser of the dishonor of the note, so that he may, if it be in his power, secure himself; and the fact to be communicated in some form is, that the note has been dishonored. No precise form of words is necessary, but those employed must be sufficient, not merely to excite suspicion and put the endorser upon inquiry, but to give him actual information of the dishonor, which means not only [579] the non-payment of the note at maturity, ('which might be the result of negligence of the holder,) but also non-payment after due presentment and demand, or such condition of facts as excuses presentment and demand. The closing paragraph of the notice given in this case informs the endorser that the holder looks to him for payment of the note, with interest, damages, and costs. As the holder could only look to the endorser for payment upon the actual dishonor of the note, this, with the other information contained in the notice, seems to be sufficient to inform the endorser of the actual dishonor of the note, and makes it unnecessary that he should have stated in so many words the facts as to.the presentment and demand. In this view, it,is. unnecessary to say anything in respect to the plaintiff’s attempt to prove an admission of notice of the defendant by the testimony given as to his words after the dishonor of the note. Judgment affirmed. Judges Bay and Dryden concur.