Wetherall v. Garrett

Now notice of Demand and Non-Payment may be proved — Evidence proper to go to the Jury. The holder of a promissory note, in a suit against the endorser, may prove notice of demand upon, and of non-payment by the maker of said note, either by the notary, or by the notarial certificate, or by the acts and declarations of the endorser, or when necessary, he may invoke the aid of all combined. Where there is evidence derived from a legal source, and tending to prove the issue, it should be submitted to the jury, [The argument on the question of waiver has been omitted, inasmuch as a decision thereon was deemed unnecessary by the Court. Reporter.]

Appeal from the Circuit Court for Cecil County. The appellees, together with Robert Garrett, since deceased, instituted, against Edward Griffith, since deceased, in the Circuit Court for Harford county, in the year 1854, five separate actions, which were subsequently removed to the Circuit Court for Cecil county, and there, by an agreement of counsel, consolidated and tried as one. The causes of action were eight promissory notes, for $1,200 each, drawn by J. Higinbotham, to the order of the defendant, Griffith, by whom they were endorsed to the plaintiffs. Each of these notes, at maturity, was protested for non-payment, and notice of protest wás, in each case, sent to the endorser. Each notarial certificate contained the words “And on the same day I addressed written notice to the endorser of said promissory note, informing him that it had not been paid,, and that he would be held responsible for the payment thereof;” but did not state, that the notice informed the endorser that “payment had been demanded a/nd refused.” At the trial, the plaintiffs, in order to show that the notices given by the notary were, in fact, in due form, offered in evidence a transcript of the record of the proceedings in the case of Spalding & Brandt against the said Edward Griffith, in which the testimony of Joseph B. Williams- — the same notary who made protest of the notes now sued on — -was taken under-a commission. But this record was ruled inadmissible by the Court, and the propriety of this ruling was not discussed in this Court, as the two bills of exceptions taken by the plaintiffs were not appealed on. The plaintiffs also proved, ¿that they had served a notice on defendant’s counsel, requiring defendant to produce the several notices, which the notary stated, in his notarial certificates, lie had sent to the defendant; and, also, proved the death of the notary. To supply the defect in the notarial certificates, the two following letters were offered in evidence by the plaintiffs, from which the jury might infer notice to the defendant of a demand on the maker of said notes, and his refusal to pay the same: “Harford, March 29, 1852. “ Messrs. Robert Garrett & Sons, Baltimore: “Gents: Your letter of the 26th inst., has been received; John Uiginbotham obtained all those endorsements from me through fraud; the evidence of which I have placed in the hands of Otlio Scott, Esq., and by his advice I shall resist the payment of the papers. All you gentleman who shaved that paper, enabled John Higinbotham to perpetrate that fraud; otherwise he could not have done it. “Very respectfully, your obed’t serv’t, “ Edward Griffith.” “Harford, July 6th, 1854. “ Gents: I received your letter of yesterday’s date to-day; I have not changed my mind since 1 had the interview with yon at Barnum’s Hotel last winter. I then stated that when Otho Scott, Esq., discovered the fraud that had been practised on me, he advised me to have nothing to do with the matter, but to put the whole business in his hands, and I have done so. I shall transmit to him youV letter. In a letter I received from Mr. Scott, dated Baltimore, June 8th, he says: H saw Messrs. Garrett last night, by ajjpointment, but could make no terms with them. I was anxious to settle their case, as litigation annoys you and would have agreed to better terms than I would give if it was my own case.’ You appear to be wrongly informed when you say John Higinbotham made an assignment to me; I had but one brief interview with him; when I discovered the fraud, I declined to have anything to do with him, and turned him over to Mr. Scott; I am told he assigned the odds and ends of his grocery store to Mr. Wm. G. Wetherall, in trust for those persons he defrauded, and then collected what he could of the debts, without giving any account to Mr. Wetherall; you are welcome to the whole list, as far as I am concerned; your conjecture that the suit will last longer than some of us, will very likely turn out true; I do not expect to last it out. “ Y ery respectfully, ec Edward Griffith. “ Messrs. Robert Garrett & Sons, Baltimore.” The plaintiffs further proved, that Higinbotham, the maker of the notes, stopped payment on the 17th of July, 1851, that on the 23d of the same month, at the request of William G. Wetherall, (the defendant’s brother-in-law,) he went to Barnum’s, and there met the defendant and his counsel, Mr. Otho Scott; that Mr. Scott drew up in the defendant’s room, at the hotel, an assignment from Higinbotham to Wetherall, which embraced all his property that he considered to be of any value; that the assignment was attested by Mr. Scott, and it was there delivered, the defendant being present and expressing no dissent to it. The assignment was made after the maturity of the first note, and before the maturity of the other notes sued on. Henry S. Garrett, one of the plaintiffs, testified that he had had several conferences in reference to the payment of the notes with Griffith and his counsel, Mr. Scott, and that neither of them, on those occasions, raised any objection to the liability of the former, or to the want of notice of protest. The plaintiffs offered four prayers, the second and fourth of which were rejected, and are therefore omitted. The first and third are as follow: First. If the jury shall believe from the evidence that John liiginbotham made and the defendant endorsed the several promissory notes offered in proof by the plaintiffs; and that when and as the said notes respectively fell due, they were respectively and duly presented by a notary public for payment, and were respectively dishonored; and that at the time of the maturity of each and all of said notes, the defendant’s post office was Perrymansville, in Harford county; and that notices in due form of such presentment and dishonor of each of the said notes were mailed on the respective days of the maturity thereof by the said notary, addressed to the defendant at Perrymansville ; that is to say, notices stating respectively the demand of payment of each of said notes on the day of its maturity and the non-payment thereof; then that the plaintiffs are entitled to recover the amount of said notes, with interest on each, from the day of its maturity; provided the jury are satisfied from the evidence, that on the days when said notes respectively fell due, the same belonged to Robert Garrett, Henry S. Garrett and John TV". Garrett,' as partners in business, under the firm of Robert Garrett & Sons, and continued to belong to them up to the day of the death of the said Robert Garrett, and since his death, have continued to be the property of the said Henry S. Garrett and John W. Garrett, as survivors of the said Robert. And that the jury, in finding notices as above mentioned are not restricted to the notarial certificates, or to direct evidence thereof, but may infer the same from the letters of the defendant to the plaintiffs, offered in evidence, and dated March 29th, 1852, and 6th July, 1854, (if from the evidence they shall find said letters to have been written by him,) and the defendant’s failure to assign the want of sufficient notice as a ground for not paying the notes offered in evidence, unless they shall find such inference rebutted by other evidence in the cause. Third. That if the jury shall believe from the evidence that John Higinbotham made, and the defendant endorsed, the several promissory notes offered in proof by the plaintiffs, and falling due after the 22d July, 1851 ; and that said Higinbotham, on the 23d of July, 1851, made the assignment which has been offered in evidence by the plaintiffs, and that said assignment was made in the presence and at the instance of the defendant, or at the instance of the defendant’s counsel, with the knowledge of the defendant, and that the said assignment conveyed all the property at that time owned by said Higinbotham; then that the plaintiffs are entitled to recover the amount of said notes, with interest on each from the day of its maturity, whether notice of the dishonor of said notes was or was not duly given by the holders thereof to the said defendant ; provided, the jury shall find that when, and as the said notes respectively fell due, they were respectively and duly presented for payment; and provided, also, the jury are satisfied that on the days when the said notes respectively fell due, the same belonged to Robert Garrett, Henry S. Garrett and John W. Garrett, as partners in business, under the firm of Robert Garrett & Sons, and continued to belong to them up to the day of the death of said Robert Garrett, and since his death, have continued to be the property of said Henry S. Garrett and John W. Gairett, as survivors of the said Robert. The defendant asked the Court to instruct the jury as follows : 1st. That the plaintiffs are not entitled to recover in this action, unless there was demand of payment of the maker of said notes, and notice thereof to the defendant, the endorser, or a waiver of said notice. 2d. That the protests offered in evidence by the plaintiffs are not sufficient evidence of the notice to defendant, and that payment of the several notes offered in evidence by them was duly demanded of the maker and refused, so as to make the defendant liable as endorser of said notes. 3d. That there is no sufficient evidence in the cause to prove any other notice than that annexed to the notarial certificates offered in the cause. 4th. That the paper offered in evidence by the plaintiffs, purporting to be an assignment from John Higinbotham to William G. Wetherall, is not, of itself, sufficient proof of a waiver by defendant of notice that payment of the notes offered in evidence by plaintiffs, was duly demanded of the maker and refused, so as to make the defendant liable as endorser of said notes. 5th. That there is no sufficient evidence in this cause to prove such waiver of notice. The Coiirt granted the first and third prayers of the plaintiffs, as also the first, second and fourth prayers of the defendant, and refused the others. To the refusal of the Court to grant the defendant's third and fifth prayers and to the granting of the plaintiffs' first and third, the defendant excepted. The jury rendered their verdict for the full amount of all the notes sued on, with interest, and judgment was entered for the amount. The defendant appealed.