Reynolds v. Appleman

Bartol, C. J., delivered the opinion of the Court. This is a suit upon a promissory note against the appellants as endorsers. It was originally instituted by Alpheus V. Appleman alone; afterwards'by an amendment his co-partner Asbury G. Appleman, the other appellee, was joined as co-plaintiff. The effect of the amendment was to deprive the defendants of the benefit of their plea of set-off, which they claimed against.

Alpheus v. Appleman; but could not be availed of against the joint demand of the firm. No question arises under the plea of set-off. The note was drawn by M. D. Savin and C. E. Abbott, dated Sept. 20th, 1871, for $340, payable at the Third National Bank, ninety days after date, to the' order of Reynolds rfe Savin,'the defendants, and by them endorsed to the plaintiffs for value, before maturity. The signatures of the drawers and endorsers being proved, the first question arose upon the legal sufficiency of the evidence, to prove due demand of payment upon the makers at the maturity of the note, and due notice to the endorsers of its dishonor.

The note fell due the 22nd day of December, 1871, that being the last day of grace, and was-held by the Western National Bank of Baltimore, for collection. The plaintiffs offered in evidence the notarial certificate, from which it appeared that the notary had demanded payment on the 23rd day of December, at the Third National Bank ; that it was not paid, and on that day he protested it, and sent notices to the endorsers, &c. Evidently if that was the only demand made, it was a day too late. To show that payment was demanded on the 22nd the plaintiffs proved by O. E Grimes, Jr., that he is now collection clerk of the Western National Bank ; but was runner in December, 1871 ; that-when notes left for collection at that bank were drawn payable at some other banks of the city, it was made the duty of witness, or in discharge of his duty, he had to present said notes at ⁶¹⁹ such different banks, and to demand payment thereof.

It was the collection clerk’s duty to put in the teller’s drawer such notes, and it was the duty of the witness to take them out of the teller’s drawer. The note offered in evidence was deposited in the Western Bank for collection, by Harryman, Knipe & Co., who kept an account in the bank. There was no endorsement on the note but Reynolds & Savin. Harryman, Knipe & Co. deposited it in bank for the accommodation of Applemau & Co. Witness testified, “I believe that from my custom and duty, I presented the' said note for payment at the Third National Bank, on December 22nd, 1871, the date of its maturity, and I have no doubt 1 took all the notes that went in the teller’s drawer, and presented all those notes for payment, to the different banks where payable.” Mr. Albers, now discount clerk, testified that he was collection clerk in December, 1871, that the note was due on the 22nd day of December, 1871, and “ that it was handed to the runner of the Western Bank ; that witness has no doubt of it.” This witness further stated that the note was deposited in the Bank for collection “on the 22nd day of December, 1871.” That being the day on which the note fell due, the jury might well infer that there would be less probability of its being overlooked by the officers whose duty it was to present it for payment, than if it had been in the bank for sometime.

Mr. Clark, who was then discount and collection clerk in the Third National Bank, testified that the note was presented for payment at that bank. Without being able positively to identify the note, he stated facts justifying the inference that the note in question is the same to which he refers. He further testified that on the day after it had been presented for payment, it came back to the Third National Bank, but irregularly through the Clearing House. In such case the rule of banks made it necessary to return the note to the Western Bank for want of funds.

The ⁶²⁰ probability is that this occurred before the note was placed in the hands of the notary, and as he had it for protest on the 23rd, the inference arises that the demand of payment was made on the day before by the runner of the Western Bank. The question was one for the jury to determine ; and in our judgment the evidence was legally sufficient to be submitted to them, as tending to prove that the demand of payment had been made on the 22nd of December. Notice to the endorsers was given on the 23rd ; there can be no question that in this respect, due diligence was exercised by the holders, and the notice was in time. But it is contended that the notice itself was not sufficient.

It was as follows : “Reynolds & Savin, Baltimore. Dec. 23, 1871, please take notice that M. D. Savin, O. F. Abbott’s note dated Baltimore, Sep. 20th, 1871, payable ninety days after date, to the order of Reynolds & Savin, for three hundred and forty dollars, payable at Third National Bank, and by you endorsed, is delived