Bittenbender Co. v. Bergen , 277 Pa. 27 ( 1923 )

Opinion by

Mr. Chief Justice Moschzisker,

In this suit against an endorser on a promissory note, judgment was entered on a verdict for plaintiff, and defendant has appealed.

The note, failure to pay, and protest were not questioned, but defendant claimed he had not been advised of the protest. To show such advice, plaintiff offered in evidence the notary’s certificate, which asserted, inter alia, “I duly notified the endorsers.” After showing defendant’s record admission that he had a regular address in Pcttsville where mail was delivered, plaintiff also proved the due posting, at a proper time, of a formal protest notice, correctly addressed to defendant.

Defendant offered a series of bald denials that he had received any notice of protest; the trial court’s refusal to receive testimony to this effect is specified in several assignments.

In the first place, appellant contends Ms offers contained more than a mere denial of receipt of notice; but, after studying them, we think they comprehend nothing of material force beyond such denial. Next, appellant contends, even if the conclusion just stated be true, nevertheless, proof that no protest notice was received is relevant evidence from which the jury might conclude no such notice had been sent, and his offers should have been accepted on this theory, if on no other.

Under our law, a notary’s certificate of protest is prima facie evidence of the facts stated therein; and, since the Act of May 16, 1901, P. L. 194, section 105, “Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.” “Under this section, due notice of dishonor is deemed to have been given when it is shown that the notice is properly addressed and deposited in the post office, whether it has been received or not”: First Nat. Bk. of Hanover v. Delone, 254 Pa. 409, 412.

Of course, evidence showing, or tending to show, that notice of protest had not been sent, can always be offered to meet a notary’s certificate and proof of mailing, or either of them (Delone Case, supra), but a bare denial of receipt of notice is negative evidence, not of sufficient probative value to overcome direct, positive testimony of actual mailing (Delone Case, supra; Zollner v. Moffitt, 222 Pa. 644, 652); such negative proof could, at most, serve only as a make-weight to help with other, positive, proofs, none of which appears in defendant’s case.

The only evidence offered by defendant, aside from that already discussed, was a letter to him from plaintiff, written some months after the date of protest, which appellant urges contained a virtual admission that no notice of protest had been sent. This letter was fairly submitted to the jury for what it was worth, and the verdict indicates they did not ascribe to it the meaning contended for by appellant.

Defendant cannot succeed in this appeal, for the evidence received proved insufficient to show a failure on plaintiff’s part to send notice of protest, and there was no error in the rejection of the offers to prove non-receipt of such a notification. True, in Zollner v. Moffitt, supra (p. 648), “defendant testified that he never received any notice of dishonor,” but, so far as that case is concerned, it is sufficient to say, the testimony does not appear to have been objected to, and the question raised here was not made a point of there.

In the Zollner Case (p. 651), we said that, albeit the notary’s certificate showed he had notified the endorsers, the court could not declare as “a matter of law” how the notice had been given; relying on this, appellant complains the trial judge in the instant case referred to the certificate of protest as “prima facie evidence” that the notice was properly mailed. Of course, this statement of the court was incorrect; but, in view of the manner in which the case was tried, we conceive the mistake could have done defendant no harm. Moreover, no special exception was taken, and when the trial judge, at the end of the charge, asked counsel if they desired any further instructions, this misinstruction was not called to his attention. The matter under consideration does not show reversible error.

Certain correspondence was put in evidence to prove an admission by defendant that he had in fact received the notice of protest. It is objected, these letters do not tend to show the admission claimed, and, hence, they should not have been received; but it might well be held the evidence objected to had some such probative force, because of defendant’s omission to say anything therein about a defense to plaintiff’s demand,' neither a failure to notify defendant of the protest nor any other reason why he should not eventually pay being mentioned in the letters. Whether or not the correspondence in question, of itself, should be viewed as having the force just suggested, is not controlling, however, since the letters were received under an offer to accompany them by certain oral testimony, “for tbe purpose of showing [defendant’s alleged] admission” through this combined evidence. The promised oral testimony, subsequently tendered by plaintiff, was not received, because objected to by defendant. When his objection was sustained, defendant should then have moved to strike out the previously admitted correspondence, if he thought it, standing alone, lacked probative force; having failed to do this, he is not in a position to complain. In addition, the letters in question did not play any material part in the trial, and, in all reasonable probability, their admission did defendant no harm, which is sufficient reason in itself for not sustaining the present assignment; it and all others are overruled.

The judgment is affirmed.