Frederick Mortensen Hinch Edward Mills John.

American notary and commissioner of deeds manual: the general and statutory ... online

. (page 35 of 50)
Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 35 of 50)
Font size
QR-code for this ebook


Where a notary makes inquiry
at the bank where paper is pay-
able and receives information that
the indorser is dead and of the ap-
pointment of an executor, a notice
of protest mailed to the indorser
by name in care of the executor
who is named is sufficient evidence
of reasonable diligence. Second
Nat. Bank v. Smith, 91 N. J. L.
531, 103 Atl. 862, 1 A. L. B. 470.

6ft American Nat. Bank v. Junk
Bros. Lumber ft Mfg. Co., 94 Tenn.
624, 30 S. W. 753, 28 L. B. A. 492.
See Uniform Negotiable Instru-
ments Law, S 101, post, p. 304.

66 Uniform Negotiable Instru-
ments Law, I 99, post, p. 304.

Where a biU indorsed by a part-
nership is dishonored, notiee to
either of the late partners is suffi-
cient to bind all. Hubbard v.
Matthews, 54 N. Y. 43, 13 Am.



Digitized by VjOOQIC



§ 448]



KBQOTIABLE INSTRUHBNT8.



287



§ 447. Who May Give Notice.— The notice may be given
by or on behalf of the holder, or by or on behalf of any party
to the instmment who might be compeUed to pay it to the
holder, and who, upon taking it up, would have a right to
reimbursement from the party to whom notice is given.*^
Each party to a bill or note, whether by indorsement or mere
delivery, has, in all cases, until the day after he has received
notice to give or forward notice to his prior indorser.^ It
should emanate from the holder at the time of its dishonor.^
Notice by an agent may be given either in his own name, or
in the name of the party entitled to give notice, whether that
party be his principal or not.^

§ 448. Manner of Giving Notice. — Where a party has added
an address to his signature, notice of dishonor must be sent
to that address, but if he has not given such address, then
the notice must be sent eitl^er to the post ofSce nearest to his
place of residence, or if he live in one place and has a place
of business in another, to either of such places. If he is
sojourning in another place, notice may be sent to the place
where he is sojourning.''^ Where the notice is actually re-
ceived by the party within the time specified, it is sufficient.^



Bep. 562; supported bj Coster,
Bobinson & Co. v. Thomason, 19
Ala. 717; Brown v. Turner, 15 Ala.
832; Slocomb v. De Ldzardi, 21 La.
Ann. 355, 99 Am. Dec. 740; Gates
V. Beecber, 60 N. Y. 518, 19 Am.
Bep. 207.

67 Uniform Negotiable Instru-
ments Law, S 90, post, p. 303.

MWbitman ft Hubbard y.
Farmers' Bank of Chattahoochie,
8 Port. (Ala.) 258.

69 Cromer v. Piatt, 37 Mich. 132,
26 AnL Bep. 503; Bank of Utiea
V. Smith, 18 Johns. (N. T.) 230.

70 Uniform Negotiable Instru-
ments Law, f 91, post, p. 303.

71 Uniform Negotiable Instru-
ments Law, I 108, post, p. 305.

Adding the word ''Memphis"
under his name, by the indorser,
may be held as an impUed direc-



tion to give notice through the
post office at Memphis. Tomenj
V. German Nat. Bank, 9 Heisk.
(Tenn.) 493.

If the indorser resides out of
the state it may be mailed to his
place of business or where he re-
ceives his mail. Wooley v. Lyon,
117 HI. 244, 6 N. E. 885, 57 Am.
Rep. 867.

7i Uniform Negotiable Instru-
ments Law, I 108, post, p. 805.

If the parties are not to be
found at their place of business, it
may be left at their residence
with any one residing in the fam-
ily, providing the party himself is
not at home. John v. City Nat.
Bank, 57 Ala. 96; Blakely v.
Grant, 6 Mass. 386; Adams v.
Wright, 14 Wis. 408.

If left at the indorser 's office in



Digitized by VjOOQIC



988



NOTARIES PUBLIC.



[8 448



It if not inctimbent on the indorser to show the holder where
the maker is to be found, so that he may make a demand on
the maker, when no application is made to him by the holder.'''
If facts exist which render a notice uncertain or equivocal,
and the knowledge of these facts are confined to the indorser,
or is not brought home to the holder of the paper, the notice
is sufficient to charge the indorser.''^*

Where notice of dishonor is duly addressed and deposited
in the post office, the sender is deemed to have given due notice,
notwithstanding any miscarriage in the mails.''* Notice is
deemed deposited in the post office when it is deposited in any



a conspicuous place, it is suffi-
cient. Hobba V. Straino, 149
Mass. 212, 21 N. £. 3^.

Notice left at the room where
indorser does business and re-
ceives mail, although he is often
absent for some time, is sufficient.
Lamkin v. Edgerly, 151 Mass.
348, 24 N. E. 49.

When the indorser resides at
the place of presentment and dis-
honor of the note, the notice
must be served on him personally,
or left at his dwelling or place of
business, if he has one there. Van
Vechten v. Pruyn, 13 N. Y. 549,
supported by Sheldon v. Benham,
4 Hill (N. Y.) 129, 40 Am. Dec.
271; Ransom v. Mack, 2 Hill (N.
Y.) 587, 38 Am. Dec. 602; Smedes
V. Bank of Utica, 20 Johns. (N.
Y.) 372; Ireland v. Kip, 10 Johns.
(N. Y.) 490.

TSLane & Co. v. Bank of West
Tennessee, 9 Heisk. (Tenn.) 419.

74 Bank of Cooperstown t.
Woods, 28 N. Y. 645.

75 Uniform Negotiable Instru-
ments Law, { 105, post, p. 304;
Second Nat. Bank t. Smith, 91 N.
J. L. 631, 103 Atl. 862, 1 A. L. B.
470.

Notice sent to the indorser 's
place of business, and there re-



mailed to his residence bj his
bookkeeper, duly stamped, with
return card on envelope, and sent
to the post office by the office boy,
as customary with the daily mail,
is sufficient, although never re-
ceived by the indorser. Swamp-
scott Mach. Co. v. Bice, 159 Mass.
404, 34 N. B. 520.

If addressed to the indorser and
left at the post office where he is
postmaster, it is sufficient. Cook
V. Renick, 19 lU. 598.

If sent by mail it must be prop-
erly addressed to the party at a
distance. It should be directed
to the post office at or nearest to
the party's place of residence or
place of business. Daniel's Neg.
Inst., p. 77; Sherman v. Clark, 3
McLean (U. S.) 91, Fed. Cas. No.
12763; Bank of Columbia v. Law-
rence, 1 Pet. (U. 8.) 578, 7 L. Ed.
269.

It is immaterial whether the
indorser receives notice so long as
he is properly served. The rights
of a holder of a note are not af-
fected if the notice does not reach
the indorser. Due diligence in
serving him notice is sufficient.
Gawtry v. Doane, 51 N. Y. 84;
Dickins v. Beal, 10 Pet. (U. 8.)
572, 9 L. Ed. 538.



Digitized by VjOOQIC



§ 449] KBQOTIABUS INSTRUMENTS. 289

branch post office or in any letter box under the control of the
post office department.*^ Evidence of a manager of a collect-
ing bank as to mailing notices of dishonor in the usual course
of business has been held sufficient to admit secondary evi-
dence of the contents of the notices, against another in-
dorser.""

The main thing is to show that notice was received by the
proper person within proper time. A notice stating that it
had been given in writing, of the demand, nonpayment and
protest to the indorsers and left at their offices, is sufficient.''*
Where the parties reside in the same town, a notice left at
the place of business of the individual is sufficiently described
as the office of the party.''* Where an indorser has no res-
idence in the city where the note is payable, and notice is
mailed to him in care of subsequent indorsers, the failure of
such subsequent indorsers to forward the notice is not negli-
gence rendering a bank who employs the notary liable.*^

§ 449. Time of Notice. — The time of giving notice is ex-
t>re68ly stated by the Uniform Negotiable Instruments Act,
and where the parties giving and to receive notice reside in
the same place, it must be given so as to reach the person to
be notified on the day following.** If the person giving notice
and the person to receive it reside at different places, such
notice must be deposited in the post office in time to go by
mail the day following, or by the next mail.** A party receiv-

76 Uniform Negotiable Initru- N. Y. App. Div. 461, 144 N. Y.
ments Law, f 106, post, p. 305. Supp. 539.

Depositing notice in a street «1 Uniform Negotiable Instrn-

post offiee box is the same as in ments Law, { 103, post, p. 304.

the post office. Johnson v. Browne, •• Uniform Negotiable Instra-

164 Mass. 105, 27 N. B. 994, sup- ments Law, S 104, post, p. 304.

ported by Pearce v. Langflt, 101 Notice must be placed in the

Pa. St. 607, 47 Am. Bep. 737. post office in time to go by mail

77 W. A. Powler Paper Co. v. of the day following the day of
Bert Jones Sales Book Co., 183 dishonor. It is necessary to show
HI. App. 310. positively that the notice was de-

7« Curry .v. Bank of Mobile, 8 posited in time for the mail of

Port (Ala.) 360. the day following. Burgess v.

7» Curry v. Bank of Mobile, 8 Vreeland, 24 N. J. L. 71, 59 Am.

Port. (Ala.) 360. Dec. 408; State Bank of EUzabeth

86 Brill V. Jefferson Bank, 159 v. Ayere, 7 N. J. L. 130, 11 Am.



Dee. 635.



19



Digitized by VjOOQIC



290 NOTAEIES PUBLIC. [§ 450

ing notice has the same time, after such receipt, to give notice
to antecedent parties.** Strict proof of mailing at the time
specified is required to charge the indorsers. The notice must
be given in accordance with the statute.**

It is the duty of the holder to give immediate notice to the
drawer if it be a bill, and to the indorser whether it be a bill
or note. The party primarily liable is not entitled to notice,
for it was his duty to have provided for payment of the paper ;
and the fact that he is maker or acceptor for accommodation
does not change the rule. Notice is not due to any party to
a bill or note not negotiable.** By presentment on the day
of maturity and giving notice of dishonor, the liability of the
drawer of an inland bill is fixed.**

Negligence in sending notice of protest is no excuse. If the
indorser fails to receive notice he is discharged from liability
unless the holder shows he has used due diligence in his ef-
forts to find him. Where this can be shown, however, it is im-
material that the notice does not reach the indorser.*^ An
indorser who has changed his residence without the knowl-
edge of the holder is bound by notice sent to his former place
of residence, if the holder is not guilty of negligence in his
failure to have knowledge of the change.**

§ 460. Notary's Certificate as Evidence.— Ordinarily a no-
tary's certificate is sufficient proof of failure to pay at ma-
turity, and of notice of dishonor,*® and under some statutes,

SSTJnifonn Negotiable Instru- 753, 28 L. B. A. 492; Harria v.

mentB Law, f 107, post, p. 305. Memphis Bank, 4 Humph. (Texm.)

84Nickell v. Bradshaw, 94 Ore. 518.

580, 183 Pac. 12. S9FeigenBpan v. McDonnell, 201

«« King V. Crowell, 61 Me. 244, Mass. 341, 87 N. B. 624.

14 Am. Bep. 560; Farmers' Bank Certificate is prima facie proof

V. Buvall, 7 Gill & J. (Md.) 78. that notice was given in eompli-

86 Wood V. Surrells, 89 HI. 107. ance with the Uniform Negotiable

87 American Nat. Bank v. Junk Instruments Act, f 108. Scott v,
Bros. liumber & Mfg. Co., 94 Tenn. Brown, 240 Pa. 328, 87 AtL 431.
624, 30 S. W. 753, 28 L. E. A. 492, Demand for payment of a for-

8SBequa t. Collins, 51 N. Y. eign bill of exchange, refusal, pro-

148; Bank of Utica v. Phillips, 3 test and notice may be proved by

Wend. (N. Y.) 408; American the notary's certificate under his

Nat. Bank v. Junk Bros. Lumber seal. Sublette Exch. Bank v.

& Mfg. Co., 94 Tenn. 624, 30 S. W. Fitzgerald, 168 HI. App. 240.



Digitized by VjOOQIC



§ 460] NEGOTIABLB INSTRUMENTS. 291

a certificate of protest of a foreign notary is admissible with-
out proof as to the authenticity of the notary's signature.®®
A memorandum made at the bottom of a certificate stating
the fact of sending of notice of protest, which is not part of
the certificate, is not evidence of such fact.®^

To destroy the effect of the certificates of the notary as pre-
sumptive evidence, the party must positively deny a receipt
of the notice. An affidavit denying receipt upon information
and belief will not answer the requirements of the statutes
and cannot be treated as an affidavit.®*

UNIFORM NEGOTIABLE INSTRUMENTS LAW.

The Uniform Negotiable Instruments Law is a revision of
the English Bills of Exchange Act of 1882, with such changes
as adapt it to the existing American Law. It was prepared
by a committee of the American Bar Association, and has
been adopted in the great majority of the states.®®

GENERAL PBOVISIONS.

Definition. — This act shall be known as the Negotiable Instruments
Law. In this act, unless the context otherwise requires: ''Acceptance''
means an acceptance completed by delivery or notification. ''Action''
includes counterclaim and set-off. "Bank" includes any person or as-
sociation of persons carrying on the business of banking, whether incor-
porated or not. "Bearer" means the person in possession of a bill or
note which is payable to bearer. "Bill" means bill of exchange and
"note" means negotiable promissory note. "Delivery" means transfer
of possession, actual or consecutive, from one person to another. "Hold-
er" means the payee or indorser of a bill or note, who is in possession
of it, or the bearer thereof. "Indorsement" means an indorsement corn-
Certificate of foreign notary as the removal or death of the no-
to presentment, demand for pay- tary); the demand and refusal
ment and notice of dishonor are must be proved by other evidence,
incompetent to establish such facts Barkalow v. Johnson, 16 N. J. L.
as to promissory note, though evi- 397.

dence as to foreign biU of ex- 90 City Nat. Bank v. Given, 103

change. Vaughan v. Potter, 131 8. C. 174, 87 S. E. 998.
111. App. 334. 91 Zollner v. Moffitt, 222 Pa. 644,

On a foreign bill, the notarial 72 Atl. 285.
protest and seal is evidence of Jbhe 92 Gawtry v. Doane, 51 N. Y. 84.

fact, but in case of a promissory 9SSee post, { 451 et 8eq,, Statu-
note it is not (unless in case of tory Bequirements.



Digitized by VjOOQIC



293 NOTARIES PUBLIC. [§ 460

pletod bj delivery. ''Instrument" means negotiable inBtniment. ''Is-
sue" maans the first delivery of the instrument, complete in form to
a person who takes it as a holder. "Person" includes a body of per-
sons, whether incorporated or not. "Value" means yaluable considera-
tion. "Written" includes printed, and "writing" includes print.
THE PEB80N "PBIMABILY" LIABLE on an instrument is the
person who by the terms of the instrument is absolutely required to
pay the same; all other parties are "secondarily" liable. BEASON-
ABLE TIME — ^In determining what is a "reasonable time" or an
"unreasonable time," regard is to be had to the nature of the instru-
ment, the usage of trade or business (if any) with respect to such
instruments, and the facts of the particular case. TIME (X)MPUTED —
Where the day, or the last day, for doing any act herein required or
permitted to be done falls on Sunday or on a holiday, the act may be
done on the next succeeding secular or business day. APPLICATION
— The provisions of this act do not apply to negotiable instruments
made and delivered prior to the passage hereof. LAW MEBCHANT —
In any ease not provided for in this act the rules of the law merchant
shall govern. ^

TITLE L

NBGOTIABLB IN8TBUMENTS IN aENEBAL.

ABTICLE I.

POBM AND INTEBPBETATION.

Section 1. Form — An instrument to be negotiable must conform to
the following requirements: (1) It must be in writing and signed by
the maker or drawer, (2) must contain an unconditional promise or
order to pay a sum certain in money, (3) must be payable on demand,
or at a fixed or determinable future time, (4) must be payable to
order or to bearer, and (5) where the instrument is addressed to a
drawee, he must be named or otherwise indicated therein with reason-
able certainty.

Sec. 2. Tba sum payable is a sum certain within the meaning of
this act, although it is to be paid (1) with interest, or (2) by stated
instalments, or (3) by stated instalments, with a provision that upon
default in payment of any instalment or of interest, the whole shall
become due, or (4) with exchange, whether at a fixed rate or at the
current rate, or (5) with costs of collection or an attorney's fee, in
case payment shall not be made at maturity.

Sec. 3. An unqnallfled order or promise to pay is unconditional,
within the meaning of this act, though coupled with (1) an indication
of a particular fund out of which reimbursement is to be made, or a
particular account to be debited with the amount, or (2) a statement
of the transaction which gives rise to the instrument. But an order or
promise to pay out of a particular fund is not unoonditionaL

See. 4. An instrument is payable at a dfrmlnfthle tMaat% time,



Digitized by VjOOQIC



§ 450] NSQOTIABLE INSTBUKENTS. 993

within the meaning of this act, which is expressed to be payable (1)
at a fixed period after date or sight, or (2) on or before a fixed or
determinable future time specified therein, or (3) on or at a fixed
period after the occurrence of a specified event, which is certain to
happen, though the time of happening be uncertain. An instrument
payable upon a contingency is not negotiable, and the happening of
the event does not cure the defect.

Sec 5. Additional provlaion not affecting negotiability—- An instru-
ment which contains an order or promise to do any act in addition to
the payment of money is not negotiable. But the negotiable character
of an instrument otherwise negotiable is not affected by a provision
which (1) authorizes the sale of collateral securities in case the in-
strument be not paid at maturity, or (2) authorizes a confession of
judgment if the instrument be not paid at maturity, or (3) waives
the benefit of any law intended for the advantage or protection of
the obligor, or (4) gives the holder an election to require something
to be done in lieu of payment of money. But nothing in this section
shall validate any provision or stipulation otherwise illegal.

See. 6. Omissions; seal; particnlar ni<mey— The validity and nego-
tiable character of an instrument lire not affected by the fact that (1)
it is not dated, or (2) does not specify the value given, or that any
value has been given therefor, or (3) does not specify the place where
it is drawn or the place where it is payable, or (4) bears a seal, or
(5) designates a particular kind of current money in which payment
is to be made. But nothing in this section shall alter or repeal any
statute requiring in certain cases the nature of the consideration to
be stated in the instrument.

Sec. 7. Payable on demand— -An instrument is payable on demand
(1) where it is expressed to be payable on demand, or at sight, or on
presentation, or (2) in which no time for payment is expressed. Where
an instrument is issued, accepted, or indorsed when overdue, it is
as regards the person so issuing, accepting, or indorsing it, payable on
demand.

Sec. 8. Payable to order — The instrument is payable to order where
it is drawn payable to the order of a specified person or to him or his
order. It may be drawn payable to the order (1) a payee who is not
maker, drawer, or drawee, or (2) the drawer or maker, or (3) the
drawee, or (4) two or more payees jointly, or (5) one or some of several
payees, or (6) the holder of an office for the time being. Where the
instrument is payable to order the payee must be named or otherwise
indicated therein, with reasonable certainty.

Sec. 9. Payable to bearer — The instrument is payable to bearer
(1) when it is expressed to be so payable, or (2) when it is payable
to a person named therein or bearer, or (3) when it is payable to the
order of a fictitious or nonexisting person, and such fact was known
to the person making it so payable, or (4) when the name of the
payee does not purport to be the name of any person, or (5) when the
only or last indorsement is an indorsement in blank.



Digitized by VjOOQIC



294 NOTARIES PTTBLIO. [§ 450

See. 10. LftngOAge— The instroment need not follow the langnage
of this act, but B,nj tenns are suffieient which dearlj indicate aa
intention to conform to the reqniremente hereof.

See. 11. I>ate — ^Where the instnunent or an acceptance or any in-
dorsement thereon is dated, such date is deemed prima facie to be the
true date of the making, drawing, acceptance, or indorsement, as the
case may be.

Sec. 12. Post dated — ^The instrument is not invalid for the reason
only that it is antedated or postdated, provided this is not done for an
illegal or fraudulent purpose. The person to whom an instrument so
dated is delivered acquires the title thereto as of the date of delivery.

Sec. 13. Undated; holder may Insert date— Where an instrument
expressed to be payable at a fixed period after date is issued undated,
or where the acceptance of an instrument payable at a fixed period
after sight is undated, any holder may insert therein the true date
of issue or acceptance, and the instrument shall be payable accord-
ingly. The insertion of a wrong date does not avoid the instrument in
the hands of a subsequent holder in due course; but as to him, th«
date so inserted is to be regarded as the true date.

Sec. 14. Blanks may be filled by holder— Where the instrument is
wanting in any material particular, the person in possession thereof
has a prima facie authority to complete it by filling np the blanks
therein. And a signature on a blank paper delivered by the person
making the signature, in order that the paper may be converted into
a negotiable instrument, operates as a prima facie anthority to fill
it up as such for any amount. In order, however, that any such
instrument, when completed, may be enforced against any person who
became a party thereto prior to its completion, it must be filled up
strictly in accordance with the authority given, and within a reason-
able time. But if any such instrument, after completion, is negotiated
to a holder in due course, it is valid and effectual for all purposes in his
hands, and he may enforce it as if it had been filled up strictly in accord-
ance with the authority given, and within a reasonable time.

Sec. 15. Incomplete Inatrnxneiit not daUvered—- Where an incomplete
instrument has not been delivered, it will not, if completed and nego-
tiated, without authority, be a valid contract in the hands of any
holder, as against any person whose signature was placed thereon
before delivery.

Sec. 16. DeUvery — ^Every contract on a negotiable instrument is
incomplete and revocable until delivery of the instrument for the pur-
pose of giving effect thereto. As between immediate parties, and as
regards a remote party other than a holder in due course, the delivery,
in order to be effectual, must be made either by, or under the authority
of, the party making, drawing, accepting, or indorsing, as the case may
be; and in such case the delivery may be shown to have been con-
ditional, or for a special purpose only, and not for the purpose of trans-
ferring the property in the instrument. But where the instrument is
in the hands of a holder in due course, a valid delivery thereof by all



Digitized by VjOOQIC



§ 460] NEGOTIABLE IKSTBUMEKTS. 295

parties prior to him, so as to make them liable to him, is conclusively
presumed. And where the instrument is no longer in the possession of
a party whose signature appears thereon, a valid and intentional deliv-
ery by him is presumed until the contrary is proved.

See. 17. Ambiguous language-^Where the language of the instru-
ment is ambiguous, or there are omissions therein, the following
rules of construction apply: (1) Where the sum payable is expressed
in words and also in figures, and there is a discrepancy between the
two, the sum denoted by the words is the sum payable; but if the
words are ambiguous or uncertain, reference may be had to the
figures to fix the amount. (2) Where the instrument provides for
the payment of interest, without specifying the date from which inter-
est is to run, the interest runs fronk the date of the instrument, and
if the instrument is undated, from the issue thereof. (3) Where the
instrument is not dated, it will be considered to be dated as of the
time it was issued. (4) Where there is conflict between the written
and printed provisions of the instrument, the written provisions pre-
vail. (5) Where the instrument is so ambiguous that there is doubt
whether it is a bill or note, the holder may treat it as either, at his
election. (6) Where a signature is so placed upon the instrument
that it is not clear in what capacity the person making the same
intended to sign, he is to be deemed an indorser. (7) Where an instru-



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 35 of 50)