Simmons v. Belt

Dryden, Judge, delivered the opinion of the court. The plaintiff below, being the assignee or endorsee of a promissory note, sued the maker and endorsers jointly, and recovered a joint judgment against them. The endorsers moved in arrest, on the ground that the petition showed no cause of action as against them. The motion was overruled, and'the case was brought here by writ of error-. The petition is as follows, viz: “ In the St. Louis Circuit Court, September- Term, 1861. St. Louis County, Mo. Samuel Simmons, plaintiff, v. Henry B. Belt, John Sexton, Sr., John Sexton, Jr., Isaac H. Sturgeon, Thomas L. Sturgeon, and Bernard Crickard, defendants.. “Plaintiff stales that on the 17th day of Apyil, 1860, at the county of St. Louis, said defendant, Henry B. Belt, made his certain negotiable promissory note of said date, by which he promised, twelve months after the date thereof, for value received, to pay said defendants, John Sexton, Sr., John Sexton, Jr., and Hugh Sexton, under the name of John. Sexton & Sons, the sum of fifty-eight hundred and twelve dollars and sixty-eight cents ($5,812.68), which said note is hereto annexed and made part of this petition. Plaintiff states that the said defendants, John Sexton, Sr., John Sexton, Jr., and Hugh Sexton, were, on the 17th day of April, 1860, the day of the execution of said note, co-partners in business under the name and style of John Sexton & Sons, and on the said date, and before the maturity of the said note, they endorsed, the same ; and, for valiie received, assigned and delivered the said note to the defendants, Isaac H. Sturgeon and Thomas L. Sturgeon, who were then co-partners in business under the name and style of Sturgeon & Brother; and that they on the date aforesaid, by their endorsement thereof, assigned and delivered the said note to the defendant Bernard Crickard, for value re [465] ceived; and afterwards, and before the maturity of the said note, the said defendant Crickard, for value received, endorsed said note and assigned and delivered the same to plaintiff, who is now the legal holder thereof. “ Plaintiff states that the aforesaid note, although long past due and payable, remains unpaid, and that at the maturity thereof the said note was duly presented at the Bank of St. Louis, to the teller of said bank, and payment thereof then and there demanded, and payment of the said note was then and there refused; and upon the day of the said presentation, demand and refusal of payment of said note as aforesaid by said defendant Henry B. Belt, the said note was duly and legally protested for non-payment thereof, and that due notice of said demand and refusal, and of the protest in consequence thereof, was upon the same day duly and legally given to the said defendants, John Sexton, Sr. John Sexton, Jr., and Hugh Sexton, composing the firm of John Sexton & Sons; and also a like notice, in a like manner, was upon the said day given to the defendants, Isaac H. Sturgeon and Thomas L. Sturgeon, composing the firm of Sturgeon & Brother as aforesaid. “ Plaintiff states that said note and interest yet remain due and unpaid. Therefore he asks judgment against the said defendants, for the amount of said note and the interest thereon; and also judgment against the aforesaid defendants, for damages at the rate of four per cent, per annum, and also for costs. Sam’l Simmons, Att'yP This petition bears a close resemblance to the petition in the case of Jaccard v. Anderson, 32 Mo. 189 ; and, for the reasons given in the opinion in that case, we hold that the averments of the petition in the case at bar are insufficient to show that the note sued on is a negotiable instrument. The instrument sued on, then, not appearing to be a negotiable but a non-negotiable note, it was not enough to allege a demand and refusal of payment in order to render the assignors liable, but for that purpose it ought to have been shown, [466] either that the maker of the note was insolvent or non-resident of the State; or that the assignee, in the diligent prosecution of a suit against the maker, had been unsuccessful in making the debt. (R. C. 1855, p. 823, § 6, title Bonds, Notes and Accounts; Jaccard v. Anderson, 32 Mo. 189; Lindsay v. Parsons, 34 Mo. 422.) Again, upon the idea that the note is negotiable, there is no sufficient demand of payment shown to charge the endorsers. As seen in the light of the petition, the note was payable at no particular place; but generally. In such case, the general rule is that presentment for payment ought to be made to the maker, either personally, or at his dwelling-house or place of business ; otherwise the endorser will be discharged. (Sto. on Prom. Notes, §251.) Yet, in the present case, the petition shows the presentment was made not to the maker personally, but to a stranger, and at a place with which, so far as appears, the maker had nothing to do. View the petition as we may, it contains no cause of' action as against the endorsers. It appeared on the trial that the assignment of the plaintiff was not intended to convey any beneficial interest in the note, but was merely for collection, and it was insisted, therefore, that the plaintiff could not maintain the action. The court refused to sustain this view, and we think properly. (Beattie et al. v. Lett et al., 28 Mo. 596.) Let the judgment be reversed and the cause remanded ; Judge Bay concurring.