Wolf v. Burgess

Sherwood, Judge, delivered the opinion of the court. Burgess is the indorser of a negotiable promissory note, on which he is sued, and the only question the record presents is in regard to the endeavor made to notify him of the default of the maker. While the authorities are uniform that suitable exertions must be used in this respect, yet different courts have arrived at variant conclusions as to the quantum of effort necessary to be put forth in order to fill the measure of what the law denominates “due diligence.” Our own court, however, has laid down a rule on this point by which, as being .just, easy of observance and especially applicable to the case at bar, we are content to abide by. In Gilchrist vs. Donnell, (53 Mo., 591,) the action was brought against tire defendants as indorsers on a note payable at the Central Savings Bank'in St. Louis; Jefferson county in this State being their residence. And although the notary, after examination of the City directory, inquiry of the bank officers, and also of a firm who had indorsed the note, failing to ascertain where to send the notices, placed them in the City Post Office, addressed to the defendants ; yet as the evidence showed from other indorsers, living in East St. Louis, the requisite information could have been obtained, it was held that reasonable diligence had not been exercised, and that the defendants were exonerated from the liability they had assumed. In the present case the defendant had no place of business in the city and no particular stopping place'when there. Sometimes he would stop at the Union Savings'Association, or at Shippen’s office, or at [585] Shields’ store, but bis post office was at Cheltenham, and his residence near that place. And his residence was known to. two of the indorsers, Daly and Einn, residents of St. Louis, of whom the notary -made no inquiry. In addition to that although there is some discrepancy between the statements of Shields and of the notary, these witnesses both concur in this, that the latter is told by the former, that Burgess “lived in the county.” Upon receiving this information the notary “'made no further inquiry.” It was tire plain duty of that officer, under these circumstances, to have followed the clue thus furnished by Shields, which, if pursued, would have resulted in the necessary information. It was a part of the same duty, whereby the like end would have been attained, to have made enquiries of Einn and Daly. It follows that 'the laches of the holder has absolved the defendant from liability on his conditional undertaking, and that the instrgction, in the nature of a demurrer to the evidence, should have been given. Judgment reversed and cause remanded; all the judges concur.