Fitler v. Morris , 6 Whart. 406 ( 1841 )

The opinion of the court was delivered by

Huston, J.

In this case we have two bills of exception to testi- - mony offered and admitted by the court. But in the errors assigned, and some part of the discussion here, errors were alleged and discussed, without any thing before us to show whether any such existed. The whole doctrine of what amounts to a sale of goods, and vests the right in the purchaser; how far the vendor may follow the goods where there has been fraud used by the buyer, either in misrepresentations at the contract, or where the goods had reached the buyer’s residence, and he becomes insolvent, &c. &c., may be material in the case ; but as the facts which would, raise these points are not before us, except by suggestion of counsel, I shall say nothing about them further than the two bills of exception require.

The plaintiff proved by a witness, who was an assistant in his shoe store, that he sold the goods in question to a certain Mr. Graham, the agent of Clements & Hall, of Montgomery county, Alabama, at which place Clements & Hall reside. Mr. Graham came here as their agent, expressly to buy goods for them. Clements & Hall were not in Philadelphia at the time of the purchase. Mr. Graham selected the goods, which were laid off, an invoice made and given to him, and the goods were packed in boxes and cases and marked “ Clements & Hall, Montgomery, Alabama.” This would seem to have,occurred on the 22d of March, 1839. On that day Graham gave Mr. Morris a draft, of which this is a copy:

“ $440 56. Philadelphia, March 22, 1839.

Nine months after date, please pay to the order of William H. Morris, four hundred and forty dollars and fifty-six cents, for value received, and charge to account of your friends,

Messrs. Harwell, Stewart & Co., Clements & Hall,

Mobile, Ala. by Wm. Graham.”

On the 25th of March, the goods thus packed and marked, were, standing on the pavement in front of Mr. Morris’s store, to be sent away in the afternoon. Mr. Graham said he had freighted a vessel for this purpose. In the morning of the day they were to have been sent off, they were carried away on drays by the sheriff’s officers, (Mr. Fitler is the sheriff.) They were standing on the pavement in front of the store when they were taken away. The plaintiff had made inquiry about the standing of Clements & Hall, and after making the inquiry agreed to sell them the goods in question. The plaintiff’s counsel then asked whether the goods had been paid for, and how they were to be paid ? The defendant’s counsel objected to the question. The court admitted it—and exception was taken.

The witness said they were to be paid for by a draft of Graham, as agent of Clements & Hall, on Harwell, Stewart & Co., of Mobile, payable in nine months, which draft Mr. Graham represented would be accepted by Harwell, Stewart & Co., on its being presented to them, but was returned protested for non acceptance on the 7th of April, 1839. (All this was excepted to by the defendant’s counsel, and a bill of exceptions tendered and sealed.)

The paper book goes on to state, that the draft was exhibited and identified as the draft in question. It was offered in evidence, together with a paper purporting to be a certificate of protest by a person calling himself a notary of Alabama, to prove the nonacceptance. This was objected to and admitted', and another bill of exceptions sealed.

The plaintiff here closed his testimony.

Though it no where appeared on the paper book, it was stated and conceded, that the sheriff took the goods on an attachment at the suit of Hill & Janney against Clements & Hall.

Mr. Graham brought a letter to this city to Hill & Janney, from Clements & Hall, proved to have been written by Mr. Hall, stating that Mr. Graham had gone to this city to purchase for them a spring supply of goods, and requesting their assistance in making his purchases.

How far an actual agreement to sell goods and laying them off and giving a bill of them, vests the property in the purchaser, is perhaps by modern decisions, not exactly settled. Where all is fair on both sides, the law was at one time not disputed; but where the buyer is guilty of any fraud, and the seller is ignorant of the situation, in a pecuniary point of view, of the purchaser; where the purchaser has made any untrue statements; where the purchaser turns out to be insolvent, and this unknown to the seller; or where something remains to be done before the delivery is to take place, the lines are not so easily drawn; and all of the contract and of the situation of the parties must be known before the extent of the respective rights can be ascertained. The cases are not reconcilable without very minute attention to the facts; and not then unless where by the aid of a jury intentions are found and taken into the account. There was then no error in the admission of the testimony in the first bill of exceptions, as the rights of the parties might depend on the contract, on how far representations were relied on. Whether any thing further was to be done by either party, &c. &c. it was proper to ask the question. The answer might decide the rights of the parties.

That part of the answer of the witness which states that the draft was returned protested, was not strictly evidence. These bills drawn on persons in different states, are considered here foreign bills, and the protest must be produced, and was so here. The statement of the witness was only introductory of the document, which was the next evidence offered here; and without production of the protest, it would not generally be evidence; it might be competent to prove by parol, when the notice of protest was received.

The next bill is to the admission of the protest. In the first place it seems to be settled that in the case of a protest of a foreign bill in a foreign country, there is no necessity to prove the signature of the notary, or his seal: to it all courts give Credit. Chitty on Bills, 361,2.

The protest was as follows.—[The learned judge here stated the terms of the protest..]

The objections to this protest were,

1. That there are blanks for the name of the holder or person presenting the draft for acceptance.

2. The proof of notice given is the notarial signature and seal ; whereas it is not the duty of the notary, and if he undertake to do it, and does do it as agent, it ought to be proved by his oath in court, or deposition legally taken.

3. It ought to have been directed to Clements & Hall, at Montgomery, Alabama, and not to them at Philadelphia.

And 1st; it is laid down, that whoever is the holder of a bill, may present it for acceptance and have it protested for non-acceptance; though the person who protests for non-payment must be able to show a right tb receive payment. All the forms of protest name the person at whose request the bill is presented; and there might be reasons why a bill could not be accepted without knowing who presented it; as if the drawer had given notice by letter to the drawee, that a bill on him was lost or stolen. On the other hand, as this bill was payable to Morris, and had no endorsement, the notary might be taken as presenting it for him. This point was not urged, and I give no conclusive opinion on it.

2. Proof of notice. There are cases where notice is not necessary. We have no evidence that this is such a case—prima facie it is necessary.

In this state, it seems to be settled that giving notice is a notarial act, and a certificate by the notary evidence that it was given. This evidence is liable to be rebutted; but in point of fact, through most, if not all of the state, the notary is called into court and proves the notice, as was done in Stuckert v. Anderson, (3 Wharton, 116.) Generally, if not everywhere, out of the operation of our act’ of assembly, the law is otherwise. In Morgan v. Van Tryon, (2 Johns. 204,) giving notice of protest is said to he no part of the duty of a notary. It would seem that the notary may be considered as the agent of the holder, and notice by him good as notice from the holder. But he proves it by his oath. Church v. Barlow, (9 Pick, 547.) The certificate that notice was sent, was therefore no suffi-' cient evidence of it.

3. The notice was of no effect, being directed to Clements & Hall at Philadelphia, when they resided at Montgomery, Alabama.

It is no excuse that the notary may have been ignorant of their place of residence. The payee and holder of the bill, by his own evidence in the cause, did know, and if he intended the notary to act as his agent, he was bound to tell him to what place to send his notice; even some inquiry and answer not satisfactory, will not justify a notary or party in directing to a wrong place. 3 Wharton, 116. The editor of the 8th American edition of Chitty on Bills, has added an appendix, in which, under title Demand and Notice, from page 809 to 8J6, many American cases are collected, and those oh this subject scattered over the whole. The result is well expressed -in page 812. 7 Halsted, 268. Where the holders know the place of residence, it will not do to allege ignorance on this point in the ■ notary or his clerk, who in giving notice is so much the plaintiffs’ agent, that what they know, they are bound to inform him. See also 7 Louisiana Rep. page 814.

These things were all received in evidence under the notarial" seal; and with them the plaintiff closed his -testimony, and the plaintiff recovered. There was error in admitting this proof of them, and in considering the proof of any effect.

It is very apparent that on another trial, many matters will be, or possibly may be proved; it may appear there was no necessity for notice; but I shall not indulge in conjecture.

Judgment reversed; and venire de novo awarded.