Berg & Co. v. Abbott

Supreme Court of Pennsylvania

Berg & Co. v. Abbott

83 Pa. 177, 1877 Pa. LEXIS 41

DecidedJanuary 2, 1877

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Bluebook

Berg & Co. v. Abbott, 83 Pa. 177, 1877 Pa. LEXIS 41 (Pa. 1877).

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Opinion

Mr. Justice Gordon

delivered the opinion of the court January 2d 1877.

The note in suit was drawn by Jenks Budlong, payable to the order of M. H. Collins, at the Citizens’ Bank of Titusville. It was endorsed by Collins to the Citizens’ Bank, and by the bank to the plaintiffs. When due, it was protested for non-payment; the notary certifying, inter alia, that he had, during business hours, presented the said promissory, note at the Citizens’ Bank, and found it closed, and that he had duly notified the endorsers. This was a sufficient demand to charge the endorsers. It was held in Bumgardner v. Reeves, 11 Casey 250, that a visit to the maker’s place of business, for the purpose of making presentment, and finding it closed, is equivalent to an actual presentment and demand, and that a notarial certificate setting forth such facts might be given in evidence to sustain a oiarr. averring actual presentment and demand. When a note is made payable at a particular place, a personal demand is unnecessary: Byles on Bills, 5th Am. ed. 342-3, note. And it would seem, from the same authority (note to page 346), [179]*179that if a note is made payable at a particular bank, and such bank before maturity, ceases to exist, a demand, in order to bold an endorser, is excused. In like manner it was considered that demand made at the office of an acceptor of a bill, though closed, was sufficient : Wiseman v. Chiappella, 23 How. 366. That the notary, after finding the bank closed, supplemented the matter by demand on one having no connection with or interest in the transaction, is of no significance; it did neither good nor harm, and may be regarded as surplusage. If the oral testimony was in any degree in conflict with the notarial certificate, as to the fact of the bank being closed at the time of the presentation, the only effect thereof 'was to carry the case to the jury, but it did not warrant a compulsory nonsuit.

Judgment reversed, and a procedendo awarded.

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Mr. Justice Gordon

delivered the opinion of the court January 2d 1877.

The note in suit was drawn by Jenks Budlong, payable to the order of M. H. Collins, at the Citizens’ Bank of Titusville. It was endorsed by Collins to the Citizens’ Bank, and by the bank to the plaintiffs. When due, it was protested for non-payment; the notary certifying, inter alia, that he had, during business hours, presented the said promissory, note at the Citizens’ Bank, and found it closed, and that he had duly notified the endorsers. This was a sufficient demand to charge the endorsers. It was held in Bumgardner v. Reeves, 11 Casey 250, that a visit to the maker’s place of business, for the purpose of making presentment, and finding it closed, is equivalent to an actual presentment and demand, and that a notarial certificate setting forth such facts might be given in evidence to sustain a oiarr. averring actual presentment and demand. When a note is made payable at a particular place, a personal demand is unnecessary: Byles on Bills, 5th Am. ed. 342-3, note. And it would seem, from the same authority (note to page 346), [179]*179that if a note is made payable at a particular bank, and such bank before maturity, ceases to exist, a demand, in order to bold an endorser, is excused. In like manner it was considered that demand made at the office of an acceptor of a bill, though closed, was sufficient : Wiseman v. Chiappella, 23 How. 366. That the notary, after finding the bank closed, supplemented the matter by demand on one having no connection with or interest in the transaction, is of no significance; it did neither good nor harm, and may be regarded as surplusage. If the oral testimony was in any degree in conflict with the notarial certificate, as to the fact of the bank being closed at the time of the presentation, the only effect thereof 'was to carry the case to the jury, but it did not warrant a compulsory nonsuit.

Judgment reversed, and a procedendo awarded.

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83 Pa. 177, 1877 Pa. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berg-co-v-abbott-pa-1877.

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