Reier v. Strauss , 54 Md. 278 ( 1880 )

Bowie, J.,

delivered the opinion of the Court.

Two questions of commercial law, of frequent occurrence, and much practical importance to the public, are presented by this record.

The first, is the extent to which the certificate of a Notary Public is admissible as prima facie evidence, in actions upon domestic bills and promissory notes, between the holder and endorsers.

The second, in what cases notice of presentment, and demand and non-payment, through the post office to the endorser is sufficient notice in law.

The appellant is the endorser of a promissory note, dated Baltimore, February 4th, 1880, executed by F. & J. Everett, for the sum of $250, payable to-, endorsed by the makers and the appellant, and delivered to the appellees.

At the trial below, two bills of exception were taken by the appellant; the first, to the admissibility as evidence, of a portion of the notarial certificate of protest, including the words “after diligent search and inquiry to ascertain his whereabouts.”

The second, to the refusal of the Court to grant the appellant’s prayer, “ that there is no sufficient evidence to entitle the plaintiff to recover in this case.”

The objection to the words of the protest, above cited, was based on the theory, that the protest “per se” was not competent evidence of any facts, but those of presentment for acceptance or payment, (as the case may be) and refusal and notice; and further, that if other facts could be proved by the certificate of the Notary, his statement of a conclusion of law, was not admissible.

These positions are so well sustained by the decisions of this Court, and others, cited by the appellant’s counsel, it is almost superfluous to refer to them.

The object and scope of the Act of 1881, ch. 253, now codified as secs. 6 and 7, Art. 35 of the Revised Code, are stated very succinctly and clearly in Whiteford vs. Buckmyer & Adams, 1 Gill, 127, and Graham vs. Sangston, 1 Md., 66.

In the former case it is said, its design was to extend to inland bills and promissory notes, the credit which by the courtesy of commercial nations, had been given to the certificate of a Notary Public. The certificate of a Notary Public, has been received as prima facie evidence of the presentment by him for acceptance or payment, and of his protest of the bill for non-acceptance and non-payment.

In the subsequent case, referring to the same Act, it is declared, “The Act of 1837, ch. 253, in no manner alters the law in regard to the character or necessity of the notice. The whole office of this Act is to make the protest of the Notary prima facie evidence, that notice has been given in the manner, and of the character described in the protest, leaving the question of sufficiency of the notice to be determined by law, as' it was prior to the passage of the Act. 1 Md., 66.

These cases do not positively decide, that the certificate shall be prima facie evidence of no other fact stated therein, but the negation and exclusion of all other facts, is clearly implied. As a statutory modification of a common law rule of evidence, “ that the best evidence in the nature of the case should be produced,” the Act, making certificates, prima facie evidence, would be confined to the specific objects for which it was enacted, as it is obvious, it would be dangerous to enlarge it, and difficult to impose any other limitation, if the expressed objects are transcended.

The Code as Revised, Art. 35, secs. 6 and 7, enacts “A protest duly made by a Notary Public of a promissory note for non-payment, or of a bill of exchange, whether foreign or inland, for non-acceptance or non-payment, shall be prima facie evidence of such non-acceptance or nonpayment, and of the presentment of such note for payment, or of such bill for acceptance or payment, at the time and in the manner stated in the protest.”

Sec. 7. “When such protest shall state that notice of such non-payment or non-acceptance has been sent or delivered to the party or parties to such note or bill, and the manner of such notice, such protest shall he prima facie evidence that such notice has heen sent or delivered in the manner therein stated.” The protest, then is limited as evidence; 1st, to the fact of presentment for acceptance or payment; 2nd, the non-acceptance or nonpayment at the time and in the manner stated in the protest; 3rdly, if the protest states that notice of non-acceptance or non-payment has been sent or delivered to the party or parties to such note or bill, and the manner of such notice, such protest, is prima facie evidence, that such notice has heen sent or delivered in the manner therein stated.

In the case of Weems vs. The Farmers’ Bank of Md, this Court confirming and repeating substantially the interpretation given the Act of 1837, making protests prima facie evidence, given in the preceding cases, declared further, that it does not make the protest, any evidence of other collateral, or independent facts, that it may contain, especially, when such facts are not necessarily within the personal knowledge of the Notary, or are of such a character, as could not be established by his testimony, if he were produced as a witness.

The clause of the protest excepted to, comes within both classes of facts, excluded by law; it refers to matters collateral and independent of the presentation and refusal of payment, and is a conclusion of law, which the Notary could not legally draw or establish by his own testimony.

The appellees, admitting for the sake of the argument, that the portion of the protest excepted to, was inadmissible, yet contend that the error was immaterial, as the appellant was not injured by the testimony; that it was not necessary for the Notary to make any search or inquiry for the residence of the endorser; that a letter mailed through the Baltimore postoffice to his address, was all that the law required; hence the recital of diligent search and inquiry was superfluous in the protest. In other words, that the defendant was by his residence in Baltimore, at the date of the note, his- continuance there some time after, his non-removal of his sign from his place of business,' etc., precluded from insisting on being regarded as a non-resident endorser, the appellees having had no knowledge of his removal, and every reason to regard him as still living in the city.

Conceding the force of this argument, the appellant replies, that the appellees did not use due means to notify him as endorser, assuming that they had reason to believe the defendant continued to reside in the city.

The true question before us is, did the appellees use due diligence, under the circumstances of this case, to notify the appellant of the demand of payment, and refusal by the makers so as to hind the appellant as endorser.

The law does not require actual notice, hut due diligence to give notice. The rule is laid down by Story in his work on Promissory Notes, to this effect:

“ In many cases, where the actual residence of the party entitled to notice cannot, after reasonable inquiries, he ascertained, it may, perhaps, he sufficient to- direct the letter of notice to the place where the note hears date, or to the place where the indorser was residing at the time of his indorsement, if no change of residence is known, or to the place where the agent or other party procuring the discount at the time states the indorser resides; or even to a place where the indorser does not reside, if another party to the note, upon inquiry, states that to he his residence. A fortiori, if upon diligent inquiries information is obtained of the residence of the indorser in a place where he does not actually reside, and the notice is directed accordingly to that place it will be sufficient to hind the indorser,” etc.

“ Where an indorser of the note points out a particular place to which notice shall he sent to him, it will he sufficient that the notice he sent to him at that place, •although it may not he his domicil or place of business. * * * * Thus where an endorser, living in Auburn, wrote after his name ‘ Auburn P. O.,7 a notice left at the post-office in that place was held sufficient; although otherwise it would have been necessary to have given personal notice.” Story Prom. Notes (6th Ed.,) sec. 344; Baker vs. Morris, 25 Barb., 138.

The evidence in this case shows, that the appellant, the •endorser, at the time of the date and endorsement of the note, resided in Baltimore, having a well-known stand, and sign designating his place of business, and his name and residence in the City Directory.

A few months afterwards, before the maturity of the note, he removed from the stand, into the country, leaving his sign standing, and a tenant in possession, to whom his •address was known, and returned weekly to his former place of business, where he received letters, although his post office was “ Greenwood, Baltimore County.77

“As a general rule, where the endorser and the party required to give him notice, reside in the same town or city, the notice must be given him personally or at his domicil or place of business, and notice at the post office will not be sufficient unless shown to have actually reached him." Walters & Harvey vs. Brown, 15 Md., 285; Bell vs. Hagerstown Bk., 7 Gill, 223.

“ This rule is qualified by the usage of large commercial towns, where, it is said, the uniform practice is to reach the party to be affected with notice through the post office, when both reside within the limits of the penny post, but it must be shown in those cases that the notice has been delivered in time to reach the endorser before the expiration of the day following the dishonor.77 Ibid.

This Court, in Whitridge vs. Rider, 22 Md., 548, reiterated the well-established commercial canon, “ that if the holder of a promissory note does not know where the ■endorser or other party to be notified lives, but can inform himself by reasonable endeavors or diligent inquiry, he must do so. An endorser is entitled to strict notice, by which is meant that reasonable diligence shall be employed and reasonable efforts made to give it. The diligence employed should be such as men of business usually exercise when their interest depends upon obtaining correct information.”

The Supreme Court of the United States, in the case of the Bank of Columbia vs. Lawrence, said : “ The general rule is that the party whose duty it is to give notice in such cases, is hound to use due diligence in communicating such notice. But it is not required of him to see that the notice is brought home to the party. He may employ the usual and ordinary mode of conveyance, and, whether the notice reaches the party or not, the holder has done all the law requires of him.” 1 Peters’ Rep., 578.

“It seems at this dajr to be well settled that, when the facts are ascertained and undisputed, what shall constitute due diligence is a question of law.” Ibid.

It is difficult to lay down any universal rule as to what is due diligence in respect to notice to endorsers. Many cases must be decided upon their own particular circumstances, etc. Bk. of U. S. vs. Carneal, 2 Peters, 543.

The appellant, being a resident of the City of Baltimore (the place of the execution and of the date of the note,) at the time of its execution and date, and continuing to reside there some time afterwards, and retaining his sign at his place of business and his name in the City Directory, in the absence of proof of knowledge to the contrary on the part of the holders, may reasonably have been presumed by the notary to be still a resident of the city, and treated as such in giving him notice. It was ruled by this Court, in Sasscer vs. Whitely & Stone, 10 Md., 98, that where a note is dated at a particular place, and no other place designated as that of its negotiation and payment, the presumption is that the maker resides where the note is dated, and that he contemplated payment at that place. The reason of the rule applies as well to the endorser as the maker, as regards notice of demand and refusal.

(Decided 30th June, 1880.)

The evidence of the appellees, showing the exercise of due diligence in giving notice of demand and refusal to the appellant, he was not prejudiced by admitting the portion of the protest excepted to, and, therefore, the error of the Court below in admitting it is no ground of reversal.

Though the prayer, which is the subject of the second bill of exceptions, may have been intended as a demurrer to the evidence upon the issue joined, on the third plea, yet, as it contains no special reference to the failure of evidence on that, or the other issues, and is a general denial of the plaintiff’s right to recover, without pointing out any particular error or omission in the proof, or raising any definite question as to its sufficiency, it was properly refused. Dorsey, et al., Ex’rs, et al. vs. Harris Adm’rs, etc., 22 Md., 85.

Judgment affirmed.