President of the Farmers Bank v. Bowie

Le Grand, C. J., delivered the opinion of this court. This is an action of assumpsit, instituted by the appellants,. ²⁹⁴ as holders of a promissory note, drawn by Robert Wright and endorsed by the appellee and others. The plaintiff, after having proved the making of the note and the endorsement thereof by the appellee, further proved by Richard I. Cowman, notary public, that on the day on which the same became due he presented it at the Farmers Bank, at Ann'apolis, (where the same was made payable,) and demanded payment, and on payment being refused— according to the statement of the record — uhe directed the following notice of protest, (no notice of protest filed,) of this note to the defendant at Bladensburg where the said note was dated” The plaintiff also gave in evidence the protest of the note, wherein the notary says he “addressed a written notice to each of the endorsers of the said note therein inform-■ ing each of them that he was held liable for the payment of the said note, and directed them respectively at Bladensburg,” fyc.- This constitutes all the testimony, in the record, of notice' to the appellee as endorser. At the trial below the plaintiff asked the court to instruct the jury, if they believed all the facts proven, the plaintiff was entitled to recover.

This direction the court refused to give, but instructed the jury to the effect, that although they should believe all the facts proven, the plaintiff was not entitled to recover, there being no sufficient evidence of notice of demand and non-payment. We think the court acted rightfully in rejecting, the prayer and in granting the instruction which it did. So far as the notice is concerned which is set out in the protest, it is identically the same as that in Graham vs. Sangston, 1 Md. Rep., 59, and the decision in that case is conclusive on the one we are now considering so far as this question is involved. The defect of the notice there, as here, consists in the omission to inform the endorser the note was due and unpaid.- The other evidence of notice is, that the notary “directed the following notice of protest,” without slating of what the notice consisted.

Moreover, it does not appear from this part of the testimony, nor, indeed, from any other part, except ²⁹⁵ that contained in the protest, when any notice was placed in the post office. The notary merely proves he directed a notice, a copy of which is not given. This evidence is wholly insufficient to fix the liability of the endorser, because it does not appear ever to have been sent to the party through the post office, or