Hirshfield v. Fort Worth National Bank. , 15 L.R.A. 639 ( 1892 )

If the facts alleged in the petition constitute a cause of action in any view of the case under the law, then it was not subject to the general demurrer.

Was the protest prematurely made, and consequently unauthorized and wrongful? We think so, unless the recognized rule under the law-merchant has been changed by our own statutory enactments. There is a conflict of authority, but, as we think, the weight of the authorities and the reasoning support the proposition that in case of a non-negotiable note, or a negotiable one without "days of grace" (like that in hand), falling due, according to its face, upon Sunday, payment can not be required nor protest made on the preceding Saturday. The following Monday is the proper date for presentment and protest, unless that is also a legal holiday. The rule is otherwise where days of grace can be claimed. Sunday being dies non and not a legal day for exacting payment, all banking business being suspended by law, can not be computed, except when it is an intermediate day. To do so would make another contract for the parties, and by requiring the defendant to pay on Saturday compel him to meet the obligation before the time for its performance had arrived. Days of grace, however, were originally granted as mere indulgence, and hence the difference in the rules and usages upon this point. Avery v. Stewart, 2 Conn. 69; Same Case, 7 Am. Dec, 250, note; 1 Dan. Neg. Inst., sec. 627; Tied. Com. Paper, sec. 316; Salter v. Burt, 20 Wend., 205; Same Case, 32 Am. Dec., 530, note; Barrett v. Allen, 10 Ohio, 426; Kilgore v. Bulkley, 14 Conn. 363; Kuntz v. Tampel, 48 Mo., 75.

We are also of the opinion that our statutes have not made any change in the rule upon this subject as above announced. They do not apply to the question in hand nor prescribe what shall be the practice when the note matures on a Sunday which is not also a legal holiday. The provisions of the statute, as will be seen upon a close scrutiny, only declare that certain legal holidays shall be treated as the Christian Sabbath in regard to the presentment and protest of bills and notes, etc., and that in the event of the occurrence of Sunday and a legal holiday upon the date of the maturity of the paper, then it may be presented or protested upon "the preceding Saturday." Rev. Stats., arts. 2835, 2837. The law as applicable to notes maturing on Sunday alone remains as it was before this enactment. If the Legislature had intended to recognize the law as already allowing the protest or presentment upon "the preceding Saturday," then the enactment of article 2835 would have been adequate for that purpose, if such had been the established rule. Article 2837 was therefore enacted to provide for a different state of case.

We conclude that plaintiff's note of hand was prematurely and wrongfully protested, but it still remains to decide whether he has otherwise shown a good cause of action. If he can recover at all (aside from the question of extortion) upon the case as made by the petition, then it must be upon the ground that the acts of the defendant in making and extending the protest of the plaintiff's note of hand, or in uttering and publishing by such means the fact that it had been dishonored, amount to a libel upon his business reputation or commercial credit. He has alleged no special damages, and unless, therefore, the words are actionable per se the demurrer was correctly sustained upon this branch of the case. Odgers on Libel and Slander, sees. 308-310, 313-315; Bradstreet v. Gill, 72 Tex. 115. The mere act of protesting the note, regarded as a wrongful act, could not give a right of action for more than nominal damages. The substantial damages result, if at all, from the publication of the act, or fact of protest; hence the wrong partakes of the character of a libel or slander, and should accordingly be governed by the same principles of law. The decision in Rolin v. Stewart, 14 C. B., 594, was based on a breach of contract, though general damages seem to have been allowed after the dishonor of the draft was published. See 3 Laws. Rights and Rem., etc., sec. 1236. We waive the omission of the plaintiff to allege that he was a merchant or trader and the absence of any innuendo in this particular (as there was no special exception), though such an allegation is of vast importance. Odgers on Libel and Slander, sec. 63; Cool. on. Torts, sec. 202.

We concede, also, that to charge a merchant or trader falsely with being a bankrupt or insolvent, or with dishonesty in his business, whether the accusation or imputation is made in writing or by words of mouth, would present a case where the language should be held to be actionable per se and give a right of action with or without special damages. Authorities supra; Newall v. How, 31 Minn. 235; 13 Am. and Eng. Encyc. of Law, pp. 306, 314, and notes. But we are of opinion that the language contained in the writing, or official extension of the act of protesting the note, which is set out, in the petition and made the basis of the suit, does not impute, directly or indirectly, insolvency or dishonesty to the plaintiff, or a want of ability or disposition to pay any just debt. It is this writing that the plaintiff alleges the defendants made, uttered, and published concerning himself, and which caused damage to his credit. The writing does not by any means necessarily or naturally have that effect so that the law would presume damages from its publication. The instrument merely recites, that upon the 15th day of November, 1890, the notary (who is defendant Arnold) at the request of the other defendant, who was the holder of the note, presented the same during the hours of business to the teller of the bank where the note was payable, and "demanded payment thereof, which was refused." That thereupon the notary "at the request" of the holder, "protested solemnly" against the maker and indorser, etc., as is usually done in such cases. Of all of which, according to the instrument, he gave notice as follows: "To W.H. Hirshfield (maker), by mail; to J.W. Zook (indorser), by mail." This seems to have been the extent of the publication. 1 Dan. Neg. Inst., secs. 939, 940, 950.

The legal effect and the purpose of the protest, as well as the formal notarial attestation thereof, are simply to fix the liability of the drawer or indorser on the bill or note to which he is a party, and to prevent a loss to the owner by reason of the nonacceptance or nonpayment, as the case may be, by the maker or drawee. The notary is called upon to witness and attest the essential facts which establish the liability, viz., due presentment and refusal of payment, etc. 1 Dan. Neg. Inst., sec. 929. We very much doubt that the writing in question is actionable at all. All of its statements are true, and it does not appear to be defamatory. A copy of the note is annexed to and made a part of it, as set forth in the petition. There is no innuendo, if admissible here, that the intent and purport was to charge the defendant with refusing to pay a just debt which had then matured. This conclusion would not naturally be drawn by any one who might read the instrument in connection with the note, and it certainly contains no words to that effect. The reader, presumed to know the law, would see that the protest had been made before the note was due, and hence that the plaintiff had a most excellent reason for not paying it at that time. Let us illustrate. Suppose the defendants had published in a newspaper the statement that the plaintiff had, after demand duly made upon him, refused to pay on the 1st day of June a note upon which he was duly bound, but which by its terms did not become due or payable until the 20th day of July. That would not be libellous, although the defendants may have been actuated by malice. "Acts which neither the moral code nor the law of the land requires, it can not be libellous to charge him with not performing." Cool. on Torts, sec. 207; Odgers on Libel and Slander, sec. 308. The damages are not the natural or legal consequences of the language. But we will take the most liberal view in favor of the plaintiff of which the language used will admit, and concede that the ordinary effect or import of such language in connection with the fact of protest would be to impute to the plaintiff a failure and refusal to pay his note of hand after it had fully matured. This is certainly as far as the conclusion can be extended, for the language used by the defendants, and by which alone they must be judged, does not affirm the justness or validity of the obligation. The accusation must also be confined to a single note, because they have not said that he refused to meet any other obligation or was in the habit of refusing to pay his notes. Under such circumstances, we think that it is obvious that the writing is not actionable per se. The refusal to pay this particular note may have been justified by sufficient reasons. It may have been an illegal or unjust obligation, or may have already been paid by the plaintiff; hence was allowed to go to protest without any fault upon the part of the plaintiff. We mean by this that the act imputed to the plaintiff was susceptible of the above explanations, and therefore neither the acts nor the language of the defendants necessarily or in their ordinary tendency or meaning charged the plaintiff with insolvency, loss of credit, or with dishonest conduct in business. In such case the law does not presume an injury to the plaintiff and allow the recovery of general damages as when the words are actionable in themselves; for the plaintiff's credit or reputation as a tradesman may or may not have suffered any injury, according to the circumstances, by the publication of such alleged defamatory matter as would not necessarily or ordinarily injure or tend to injure him in these particulars. If it did so injure him in this instance, then the fact should have been alleged, showing the special injury. We are clear, therefore, in the conviction that the writing declared on as a libel is not actionable per se, and consequently that the allegations of the petition do not show any right to recover damages for its publication. Zier v. Hofflin, 33 Minn. 66; Pratt v. Press Co., 30 Minn. 41; Newbold v. Bradstreet, 57 Ind. 38; Cool. on Torts, secs. 203, 205. Where the libel is not actionable per se mental anguish can not be allowed as a part of the damages (if recoverable in any case) without proof of some other injury or damage. Odgers on Libel and Slander, p. 310, and note; Cool. on Torts, sec. 204, and note 3; Trawick v. Martin Brown Co., 79 Tex. 460; Railway v. Levy, 59 Tex. 563.

It should perhaps also be added, that in Odgers on Libel and Slander (cited above) it is stated, on page 297, that it is not necessary to prove special damages "in any action of libel," from which it might be inferred that such damages need not be alleged in any case of libel. We can not subscribe to this doctrine. That would abolish the well recognized distinction, even in cases of libel, between words actionable in themselves and those that are not, and make all libels actionable per se. We concede that there may be words used in a published writing or public print, etc., which might be actionable per se as libels, when if only spoken they would not be; but still we think that unless the libel is of that class the plaintiff must, as he would be bound to do in cases of slander under such circumstances, allege, in addition to an innuendo showing the injurious meaning of the language, some special injury or damage to himself arising as the natural and immediate consequences of its publication. Cool. on Torts, secs. 204-206; 13 Am. and Eng. Encyc. of Law, 435, note 3; 3 Laws. Rights, Rem. and Prac., p. 2176; 72 Am. Dec., 428, note 2; Achon v. Piper, 66 Iowa 694; Zier v. Hofflin, 33 Minn. 66; Bell v. Print Co., 3 Abb. N.C. (N.Y.), 157; Wallace v. Bennett, 1. Id., 478; Walker v. Tribune Co., 29 Fed. Rep., 827.

We now reach the determination of the question, whether the petition shows any right to recover damages on account of the alleged extortion. On this point appellees' counsel say: "We do not think the fees received by the notary were illegal or extortionate in the sense of the criminal statute. They were the ordinary and usual fees charged for protesting, and if the appellant had declined to pay, the notary had no means of compelling him to do so, either by seizing his person or property. The act was purely voluntary and unconstrained on the part of the appellant. It is not even alleged that he paid them under protest, or in anywise signified his unwillingness or objection to do so."

We approve of this position, and hold that the fees, having been paid by the plaintiff voluntarily, with full knowledge of all the facts, and at most only under a mistake of law, can not be recovered back, unless he is entitled to do so by virtue of our statute which prescribes a penalty for the benefit of the injured party against the officer for receiving as well as demanding illegal fees under certain circumstances. City of Houston v. Feeser, 76 Tex. 365; Taylor v. Hall,71 Tex. 213. Article 2421 of the Revised Statutes extends the penalty only where the officer has demanded and received "higher fees" or "any fee" not allowed by title 42 of the statutes. Under the construction heretofore given to very similar provisions of law by both the Supreme Court and Court of Appeals, the acts of the defendants as shown by the petition are not within the purview of article 2421, and do not amount to extortion as there defined. Orton v. Engledow, 8 Tex. 206; Hays v. Stewart, 8 Tex. 358; Smith v. The State, 10 Texas Ct. App. 413[10 Tex. Crim. 413]. It is intimated in Hays v. Stewart, supra, that while the fourfold penalty could not be recovered under such circumstances, yet the amount of fees illegally received by the officer might be; but the court did not advert to the effect of a voluntary payment with knowledge of the facts, or to the want of any power in the officer to enforce payment had it been refused. Article 240 of the Penal Code, even as amended, confers no right to recover back the fees when they are such as are prescribed by law for the services performed and have been voluntarily paid; and we conclude, therefore, that the plaintiff under the facts stated in the petition was not entitled to recover as a part of his damages the fees he had paid the notary. Millar v. Douglass, 42 Tex. 288; 1 Dan. Neg. Inst., sec. 934.

The decision of this question where the amount is clearly below the jurisdiction of the District Court is only important, therefore, as affecting the right to recover exemplary damages as claimed in the petition. That character of damages is not recoverable without some actual damage is also shown. Trawick v. Martin Brown Co., 79 Tex. 460; Flanagan v. Womack,54 Tex. 50. The petition failing to disclose any right to recover actual damages, was insufficient upon the demurrer, and therefore the judgment should be affirmed.

Affirmed.

Adopted February 16, 1892.