Brewer v. Automobile Sales Co.

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1029, n. 30; Bills and Notes, 8CJ, p. 550, n. 5; p. 676, n. 6; p. 709, n. 12; p. 977, n. 48; p. 1055, n. 78; Sales, 35Cyc, p. 240, n. 75; p. 242, n. 77, 79; Trial, 38Cyc, p. 1634, n. 15; p. 1640, n. 62; p. 1786, n. 97; Presentment of note at particular place as necessary to charge indorsers, see 3 R.C.L. 1199. This is a suit by the appellee on a promissory note executed by Dan Brewer to the Murphy Motor Company, on which J.W. Cutrer is an accommodation indorser, and of which the appellee became the owner in due course. There was a verdict and judgment for the appellee, from which Brewer and Cutrer have brought the case to this court, though error has been assigned by Cutrer only.

An automobile was sold to Brewer by the Murphy Motor Company partly on credit; the deferred payment being evidenced by a promissory note. When this note became due, a new note, indorsed by Cutrer, was executed in settlement thereof, and the suit is on this renewal note. The appellants introduced evidence that the automobile was represented to Brewer, when purchased, as being new, when, in fact, it was not, and was worth less than a new automobile, which fact was discovered by Brewer shortly after he purchased the automobile and some time before he executed the renewal note. The automobile, after its delivery to Brewer, was damaged by fire, and the appellee seems to have collected from an insurance company the amount due by the company therefor on an insurance policy it had issued thereon, and to have agreed to repair the automobile, and to deduct from the insurance money an amount sufficient to reimburse it therefor. One of the defenses of the appellant is that, after deducting the legitimate expenses of repairing the automobile, there remains a balance in the hands of the appellee which should be applied to the payment of the note sued on. The evidence in this connection was conflicting, and its decision was submitted to the jury under proper instructions.

The declaration alleges the dishonor of the note and the giving of notice thereof to Cutrer. The note provides on its face that it is "negotiable and payable at the Planters' Bank at Clarksdale, Miss." The notary public testified that he presented the note to the cashier of the Planters' Bank for payment on the date of its maturity, but the cashier testified that he did not remember that the note was presented to him. An employee of the Commercial Bank of Clarksdale, where the note was sent for collection, testified that on the due date of the note he presented it for payment to Miss Mabel Hicks, an employee of the Planters' Bank; that she retained it until the bank closed for the day. This employee stated that Miss Hicks was the employee of the bank to whom he had been accustomed to present negotiable instruments payable at the bank. The cashier of the Planters' Bank testified that he did not know whether Miss Hicks was the proper employee of the bank to receive and handle this note; that her duties were to handle the daily clearings, and, if this note had been presented as a part of such clearings, it would have been her duty to receive it and present it to the proper officer of the bank for his decision as to its payment. The notice of dishonor, filed as an exhibit to the declaration, is in the form of a protest of the note by a notary public, and recites that the notary presented the note "at the office of Dan Brewer to the person in charge, and demanded payment, which was refused, and that a copy of the protest and notice was mailed to Cutrer at Clarksdale, Miss." The protest and notice given in evidence are in accord with this exhibit. Cutrer denied receiving this notice. There was evidence that, some time after the dishonor of the note, Cutrer promised an agent of the appellee to pay the same if Brewer did not, which promise was denied by Cutrer.

The errors alleged to have been committed in the court below, and here relied on, are: (1) The refusal to direct the jury to return a verdict for Cutrer; (2) the granting of several instructions to the jury requested by the appellee; and (3) the refusal of instruction No. 11, requested by the appellants.

The grounds of Cutrer's contention that he was entitled to a directed verdict were: (1) The note was not presented for payment; and (2) notice of its dishonor was not given Cutrer.

Presentment of the note for payment at Dan Brewer's office was not sufficient to hold Cutrer as an indorser thereon; for, in order to so hold Cutrer, it must have been presented at its place of payment, the Planters' Bank of Clarksdale. Sections 73 and 87, chapter 244, Laws of 1916 (Hemingway's Code, sections 2651 and 2665); 5 Uniform Laws, Ann. 340; 2 Paton's Digest, sections 3950a and 3951a; 8 C.J. 550; Brannon's Negotiable Instruments Law (4 Ed.) 652; 3 R.C.L., 1199. Leaving out of view the evidence of the notary that he presented the note to the cashier of the Planters' Bank, the evidence of the employee of the Commercial Bank that he presented it to Miss Hicks, who retained the note until the bank closed for the day, disclosed a sufficient presentment of the note. Miss Hicks had been accustomed to handle such matters; she acted on the supposition that she had authority so to do; and the testimony of the cashier of the bank is not sufficient to negative such authority.

The notice of dishonor given to Cutrer was insufficient, for it did not set forth that the note had been presented at or to the Planters' Bank for payment. A notice of dishonor must be sufficient to indicate that it was presented at the proper place and payment refused. Chapter 244, Laws of 1916, sections 96 and 153 (Hemingway's Code, sections 2674 and 2731). "It was held in Routh v.Robertson, 11 Smedes M. 382 [decided long prior to the adoption of the Negotiable Instruments Law], that when the notice of dishonor was such that the legal effect of what was stated to have been done would release the indorser, the notice was insufficient." Witkowski v. Maxwell, 69 Miss. 56, 10 So. 453. This defect in the notice of dishonor, however, was waived by Cutrer, if, after the maturity of the note, he promised an agent of the appellee to pay it, for "notice of dishonor may be waived . . . after the omission to give due notice, and the waiver may be express or implied." Section 109, chapter 244, Laws of 1916 (Hemingway's Code, section 2687). The rule in this state prior to the adoption of the Negotiable Instruments Law was that a promise by an indorser of a promissory note to pay it, made with full knowledge that he had been released from liability thereon by the neglect of the holder, will operate as a waiver of presentment for payment, and notice of dishonor to the indorser. Harvey v.Troupe, 23 Miss. 538; Robbins v. Pinckard, 5 Smedes M. 51; and Moore v. Ayres, 5 Smedes M. 310. This holding is abundantly supported by authority. 8 C.J. 709; Brannon's Negotiable Instruments Law (4 Ed.), section 109; 3 R.C.L., 1242. Some of the courts hold that under the Negotiable Instruments Law such a promise to pay by an indorser waives defects in, or a failure to give, notice of dishonor, although he was not aware thereof when he made the promise. Brannon's Negotiable Instruments Law (4 Ed.), 701. It is not necessary for us to so hold, or to express an opinion thereon, for the reason that it is clear from the evidence that, if Cutrer received and examined the notice of dishonor, he knew of its defects; and that, if he did not receive the notice, as no representations appear to have been made to him relative thereto, he must have acted on the theory that no such notice had been given to him.

The declaration does not allege a waiver of the notice of dishonor by Cutrer, but it does allege the giving of such notice, and "it is . . . settled, that a promise of payment which will dispense with proof of notice of dishonor, may be given in evidence under the usual averment of notice." Moore v.Ayres, 5 Smedes M. 310, 8 C.J. 977.

The court instructed the jury for the appellee to find that notice of dishonor had been duly given, if they believed from the evidence that the notary public "sent through the United States mail a notice to Cutrer that the note had been presented at the Planters' Bank, Clarksdale, Miss., and dishonored." This instruction should not have been given, for the reason that there was no evidence that any notice setting forth that the note had been presented at the Planters' Bank was mailed to Cutrer. This error, however, was participated in by the appellants, for they were granted an instruction charging the jury that, before a verdict could be returned for the appellee, the jury must believe from the evidence that a notice was mailed to Cutrer setting forth that the note had been presented at the Planters' Bank, and was cured by the instruction granted the appellants "that notice of presentation and demand of payment at Dan Brewer's office is insufficient."

Two instructions were given the jury similar in effect, one of which was:

"If you believe from the evidence that, after the note became due, and was not paid, Cutrer, knowing same was due and unpaid, told Maxson or Blanks that he would see that Brewer paid the note, and, if he did not do so, then he (Cutrer) would pay the same, then he is liable on said note, even though no presentment, demand, or notice of dishonor was ever made or given to him or any one else, and defendant Cutrer is liable thereon, provided the defendant Brewer is."

If, as hereinbefore stated, Cutrer made the promise set forth in this instruction, he is not released from liability as indorser on the note because of the defect in the notice of dishonor thereof. If there is any defect in this instruction, it is in its omission to charge the jury that, in order for the promise to be binding on Cutrer, he must have known at the time he made it of the defects in the notice of dishonor. Assuming, for the purpose of the argument, but not deciding, that such knowledge on the part of Cutrer was necessary, the omission of the requirement therefore in the instruction was proper, for the reason that it is clear from the evidence, as hereinbefore stated, that, if Cutrer made the promise, he then either knew that the notice given him was defective, or acted on the theory that no notice was given. As hereinbefore stated, the evidence disclosed that the note was properly presented for payment. Consequently, the charge in the instruction that Cutrer, because of his promise, would be liable, though no presentment was made, was harmless.

The court charged the jury, at the request of the appellee, "that, if the defendant, shortly after the purchase of the car, discovered that it was not new, kept the car, and used it for many months, and, in consideration of an extension of time for payment of the note, renewed the note for the purchase price without any objection or claim for damages in this regard, used the car again, and afterwards, when it was hurt by fire, had plaintiff repair it, they may find from these facts that the defendant Dan Brewer waived any defense on the ground that the car was not a new one, and is not now permitted to claim any offset against the note on this account," and refused an instruction for the appellants charging the jury that the execution of the new note constituted no such waiver. The ruling in the court in both instances was correct. Colt v. Kelly,142 Miss. 617, 107 So. 757.

Affirmed.