Wolf v. Union Trust Co.

³⁸⁷ Parke, J., delivered the opinion of the Court. The Baltimore and Eastern Shore Ferry Line, Inc., as maker, with Harry B. Wolf and Charles L. Wolf as the endorsers, gave, for value, to the Union Trust Company of Maryland, its promissory note for the sum of fifteen thousand dollars, payable at the office of the company four months after date. As the note fell due on Saturday, the statute provided that it should be presented for payment on the next succeeding business day, which was Monday, March 12th, 1923, and on that day the note was duly presented for payment and payment was refused. Code, art. 13, secs. 104, 94, 106, 102.

The note was protested on the day of its dishonor by a notary public, whose position as vice-president of the banking company did not disqualify him from acting, as he was not a party to the dishonored instrument. Code, art. 68, sec. 12. The obligation was not thereafter paid or otherwise discharged, and suit was brought on July 1st, 1925, by the payee against the appellant, Charles L. Wolf, as endorser, under the Rule Day Act of Baltimore City (Act of 1886, chapter 184). A recovery was had by the payee, and the three bills of exceptions on the record present, substantially, but the single question of the legal sufficiency of the testimony to show that notice of the dishonor of the negotiable instrument had been given the endorser sued.

Code, art. 13, secs. 82, 108 ; Lightner v. Roach, 126 Md. 476 ; Bradley v. Ford Products Co., 139 Md. 388 ; Leonard v. Union Trust Co., 140 Md. 201 . A.t the trial the appellee offered the note in evidence and proved that the note was duly presented, its payment demanded and refused; that the note was thereupon protested; and that it had not been since paid. The protest was given in evidence and by it was certified that on the day of the protest the notary “addressed written notices to the makers and endorsers of the said note informing them that it had not been paid,, payment thereof having been demanded and refused, and that they would be held responsible for the payment thereof.” ³⁸⁸ In. order for the protest to be prima facie evidence under the statute that notice of dishonor had been given, it is necessary that the protest “shall state that notice of such non-payment has been sent or delivered to the party or parties to such note or' bill, and the manner of such notice.” Code, art. 13, secs. 6, 7. The manner of giving the notice may be by delivering it personally or through the mails.

Code, art. 13, sec. 115. While the form of the protest used by the notary was sufficient, yet there was no statement that notice of the dishonor had either been sent or’ delivered to the parties to the note, much less any indication of the method adopted. The assertion that the notary had “addressed written notices to the makers and endorsers” of the negotiable paper is plainly not sufficient to fulfill the quoted requirement of the statute. When it is averred that the notary “addressed” the written notices, nothing is disclosed of what became of the written notices after they had been “addressed” by writing upon the notices the direction or superscription, giving the names and residences or places of business of the makers and endorsers of the promissory note.

Whether the notices so addressed were delivered in person or through the mails is left to conjecture. Indeed, there is nothing in the certificate of the notary that is not as consistent with the inference that the notices had never been sent as that they had been served personally or had been forwarded by mail. The insertion of the fact and of the manner of the notice to the parties secondarily liable on a negotiable instrument is not essential to the sufficiency of the notary’s certificate of protest, but its insertion is now customary in commercial usage, for the reason that when it is incorporated it becomes prima facie evidence of the facts recited under an express provision of the Negotiable Instruments Act. Code, art. 13, secs. 6, 7.

Before the certificate can be given its statutory Value as evidence against a party to the dishonored paper, it must strictly comply with the required precedent condition of a definite statement that notice has been given to the party or parties to ³⁸⁹ the negotiable instrument, together with the manner of such notice. The certificate of the notary in the instant Case was prima facie evidence of the facts of presentment, demand and non-payment at the time and in the manner stated in the certificate of protest, but, for the reason pointed out, it was not prima facie evidence that notice of dishonor had been sent or delivered to the parties secondarily liable. Code, art. 13, secs. 6, 7. Farmers Bank v. Bowie, 4 Md. 290, 294 , 295 ; Ricketts v. Pendleton, 14 Md. 320, 322 , 329-330 ; Staylor v. Ball, 24 Md. 183, 189 , 199 ; Crowley v. Barry, 4 Gill, 194 ; Reier v. Strauss, 54 Md. 278 , 287 ; Weems v. Farmers Bank, 15 Md. 231 , 240 ; Howard Bank v. Carson, 50 Md. 18, 22 , 27 ; Tate v. Sullivan, 30 Md. 464 , 465 ; People’s Bank v. Keech, 26 Md. 521, 527, 529 , 530 ; Nailor v. Bowie, 3 Md. 251, 253, 256 , 258 ; Fulton v. Maccracken, 18 Md. 528, 530 , 541 ; Citizen’s Bank v. Howell, 8 Md. 530 , 531 ; Graham v. Sangston, 1 Md. 59 , 65 ; Hunter v. Van Bomhorst, 1 Md. 504 , 507 ; People’s Bank v. Brooke, 31 Md. 7 , 10 ; Monroe v. Woodruff, 17 Md. 159, 160 , 164 ; Jones on Legal Forms (7th ed.), 1388, 1389.

The last cited cases are concrete illustrations not only of the insufficiency of the certificate of protest on this record to gratify the provision of the statute with respect to the statement of notice of dishonor having been sent or delivered to the parties and the manner of such notice, but also ■of the practice in that connection which has prevailed. It is quite true that the comptroller is required by law to have printed approved blank forms of protest of bills of exchange and promissory notes and stamp- the same, and take receipts therefor, whenever he shall deliver any of them to the notaries public, but this obligation imposed upon the comptroller for record and revenue purposes does not operate to cure defects or to supply omissions or statements in a notary’s certificate. Code, art. 19, sec. 28. 2. The failure of the notary’s certificate to furnish all the elements of proof necessary to entitle a recovery by the payee against the endorser did not preclude the admission ³⁹⁰ of other testimony to supply this deficiency, as the proof required was not in contradiction of the statements of the protest, but was. for the purpose of supplying its material omissions.

Hunter v. Van Bomhorst, 1 Md. 511 , 512 ; Sasscer v. Farmers’ Bank, 4 Md. 409, 418 , 419 ; Tate v. Sullivan, 30 Md. 464 , 469-471 ; Wetherall v. Clagett, 28 Md. 465, 474 , 475 ; Wetherall v. Garrett, 28 Md. 450, 456 . The testimony on the point of notice of dishonor having been given to the parties was by the notary who protested the negotiable paper. This witness’ evidence was in accord with the statements of his certificate of protest, and there is no dispute that the note was duly presented, its payment demanded and refused by the maker. As no notice of the dishonor of the note was delivered personally, the question is, Was there sufficient evidence of notice having been given by mail ?

The statute provides that notice of dishonor may be given through the mails, and when it is' duly addressed and deposited in the postoffice, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails. Oode, art. 13, secs. 115, 124. The party giving and the persons to receive the notice resided in Baltimore, and, therefore, the notice by mail had to be deposited in the postoffice in time to reach the maker and each of the endorsers in iisual course on the day following. Oode, art. 13, sec. 122.

The Negotiable Instrument Act, therefore, made the test of a sufficient notice by mail depend upon two indispensable requirements: .First, the notice must be duly addressed, and, second, duly deposited in the postoffice, in any branch post-office, or in any letter box under the control of the postoffice department, in time to reach the maker and each of the endorsers in usual course on the day following the dishonor of the negotiable instrument. Oode, art. 13, secs. 124, 125, 122. The notary was the only witness in the cause, and his testimony and certificate of protest embrace all the evidence on the record. This evidence tended to prove that the notices of dishonor, in approved form, with postage prepaid and properly addressed to every one of the parties at its and ³⁹¹ his place of business, in Baltimore, were, on the day of the protest, put by the notary in a mail basket maintained in its banking house by the Union Trust Company of Maryland; and that it was the established custom of the Union Trust Company to- have its mail, including all the letters containing notices of dishonored and protested paper, daily and uniformly deposited in this mail basket, which was provided for that specific use; and every day a runner, who was employed by the company for this duty, collected at four o’clock of every afternoon, and about every hour thereafter, all the mail so put in this basket, and carried the mail, after every such collection, to the postoffice, where the mail was posted by the runner; and that the notices in this case were so sent with the regular mail to the po-stoffice.

The notary was a vice-president of the Union Trust Company and familiar with the matters with respect to which he testified. His evidence was- in no way contradicted, but the appellant maintains that, in order to establish the mailing of a letter by proof of a private business custom or usage, whereby letters deposited in a particular place or receptacle are taken by an employee and mailed, it is necessary that proof of the custom or usage be supplemented by testimony showing a compliance with the usage or custom, or, specifically, by evidence of the appellee’s runner, whose duty it was to take the letters -so deposited and mail them, that he had actually mailed the notices of dishonor addressed and placed by the notary in the bank’s mail basket. In support of this position, the appellant cited the early cases of Flack v. Green, 3 G. & J. 474 ; Bell v. Hagerstown Bank, 7 Gill, 216 ; Brailsford v. Williams, 15 Md. 150 , and Williams v. Brailsford, 25 Md. 126 . In the first of these oases the testimony offered to establish the due sending of notices of dishonor was said in Bell v. Hagerstown Bank, 7 Gill, 216, at p. 228 , to have been “manifestly too loose and vague to raise the presumption it was intended to convey.

Time, the essential ingredient in the notice, is indefinite. It does not appear when the letter was received by the house, or how soon after it, the ³⁹² notice Was forwarded, to the endorser. It does not prove through what channel or direction, by whom or whose business it was among the partners and clerks of the house, to see it expedited, and whether it Was forwarded by mail or personal message. There is nothing in the evidence to warrant a legal inference that it was the particular duty of any one of the firm or the clerks, to see that a proper direction was given to the notice by which it might re'ach the