Nailor v. Bowie , 3 Md. 251 ( 1852 )

Tuck, J.,

delivered the opinion of this court.

The appellant sued the appellee as payee and endorser of two notes of John Waring, payable, respectively, at eighteen and twenty-four months from date. Having proved the making and endorsement of the notes, and that the appellee resided and had his place of business in Baltimore when they became due, he offered in evidence the protests set out in the record, for the purpose of proving demand and notice. The defendant objected to this evidence' as inadmissible for the purpose for which it was offered, which objection was sustained.- In this we think that the court erred, because, as part of the evidence tended to prove the issue, and was admissible, the whole should not have been excluded from the jury. Budd vs. Brooke, 3 Gill, 220. 1 Md. Rep., 474.

The protest of the first note states, that on the due-day the notary demanded payment at the Bank of Metropolis, “the drawer having removed from Washington, and having been previously informed at his late place of business that he had not left any funds or made any provision for his notes.The liability of an endorser is conditional; the holder takes the note, with the understanding that demand and notice are precedent to his right to recover, and the endorser is entitled to strict notice. Bell vs. Hagerstown Bank, 7 Gill, 225.- The demand at the bank is conceded to have been insufficient. But it is said, that the averment in the protest shows that the-maker'had left Washington, and that a demand was made at his late place of business. Upon the subject of demand where the maker has removed, we take the-law to be correctly stated by Chancellor Kent, in 3 Vol. of his Com., Lecture 44, page 96: “The general principle is, that due diligence must be used to find out the party and make the demand, and the inquiry will always be,- whether, under the circumstances of the case, due diligence has- been used ?” “ If the party has absconded, that will, as a general rule, excuse the demand. If he has changed his residence to some other place, within the same State or jurisdiction, the holder must make endeavors to find it, and make the demand there; though, if he has removed out of the State subsequent to the making of the note or accepting the bill, it is sufficient to present the same at his former place of residence” (or of business.) “If there be no other evidence of the maker’s residence than the date of the paper, the holder must make inquiry at the place of date, and the presumption is, that the maker resides where the note is dated, and that he contemplated payment at that place. But it is presumption only; and if the maker resides elsewhere within the State when the note falls due, and that be known to the holder, demand must be made at the maker’s place of residence,” or of business.

Although the drawer may have removed from Washington, it does not necessarily follow that he could not have been found, on inquiry, at some other place within the same jurisdiction. Nor are wé to infer that a demand was' made, from what the notary says was the information he received at the drawer’s late place of business. Whether he presented the note there, or- had it with him, does not appear. “The mode of demand is well settled. A demand without the presentation of the note, would in genera] be equivalent to no demand;, and wdien it is made, the holder should be prepared and ready to produce it.” 7 G. & J., 89, Farmers Bank vs. Duvall. But the law is equally stringent as to the time of the demand; The word “previously,” does- not necessarily imply that it was made on the" same day. It would have been quite proper for the holder or the notary to have made inquiry for the maker several days before the note became due, that he might make the demand at the proper place, and this word may have referred to some such inquiry. In the case of Whiteford vs. Burckmyer and Adams, 1 Gill, 142, a question arose as to the time that notice of demand and refusal was given to the endorser. It was held that “plain and satisfactory proof as to the time of service,” was necessary. Applying the principle of that decision to the present ease, the evidence must point, not to a demand at some time, but show that it was made on the day prescribed by law.

Where the notary in the protest slates, that “notice of protest” was sent to the endorser, and the manner of such notice, it implies a demand and refusal to pay by the maker or acceptor. 4 Gill, 194, Barry vs. Crowley 1 Md. Rep., 512, Hunter vs. Van Bomhorst. Bat this presumption cannot arise when the protest itself shows that no sufficient demand and refusal had taken place. For these reasons we decide, that the first protest was insufficient and properly rejected by the court.

We entertain a different view of the protest of the second note. That shows a demand on the maker in person and his refusal to pay. To this extent, and for the purpose of proving due demand and refusal, it was sufficient prima facie evidence. But the notice to the appellee, as stated in the protest, was clearly insufficient. It did not inform him of a demand and refusal. 1 Md. Rep., 59, 504. Boehme vs. Carr, ante, 202. This defect, perhaps, could have been supplied. It does not- appear that the plaintiff had closed his case when the objection was made. Wolfe vs. Hauver, 1 Gill, 84. He was not obliged to rely solely on the protest. In the case in 1 Gill, 151, before referred to, notices for the endorsers, of demand and refusal had been sent, under cover, to the cashier of the bank. The court said that these facts could be proved by the protest, and their subsequent delivery to the parties to be charged, by other evidence. And so in 1 Md. Rep., 512, where the protest did not show sufficient notice to the endorser, he was held liable upon his acknowledgment that he had received a “notice of protest.” A party cannot always prove his case by one witness, or by one paper — several may be required. He may commence with any part of his evidence—Caton vs. Carter, 9 G. & J., 476—and it is error to reject any that is per se, pertinent to the issue. When the plaintiff has closed, if there be a failure of proof as to any fact necessary to be proved, the defendant may ask an instruction that the evidence is not legally sufficient to maintain the action.

We approve of the court’s refusal to grant the plaintiff’s prayer contained in the second exception, for the reason that both the protests on which the prayer is predicated, had been rejected by the court, and were no longer in the cause; and also because the prayer assumed that the plaintiff was entitled •to recover on both notes, when, as we have seen, the evidence as to each, if it had not been rejected, was insufficient to maintain the action.

Dissenting from the ruling of the court below, as to the admissibility of the protest of the note faffing due on the 2nd August 1849, we reverse the judgment and order a procedendo.

Judgment reversed and procedendo awarded.