Rudd v. Deposit Bank of Owensboro

49 S.W. 207, 105 Ky. 443, 1899 Ky. LEXIS 231

• Court: Court of Appeals of Kentucky
• Decided: January 26, 1899
• Status: Published

Opinions

JUDGE BURNAM

delivered the opinion of the court.

These two appeals involve the determination of the same points. They are from judgments rendered in suits instituted by appellee to recover of William Rudd, as drawer, John Murphy, as indorser, and R. W. Slack, agent for the Rudd estate, as acceptor, certain bills of exchange, which had been protested for nonpayment. The same defenses were made in both suits by R. W. Slack, as agent for the Rudd estate, and John Murphy. Slack, as agent for the Rudd estate, answers as acceptor, and says that, before he qualified as agent for that estate, the drawer, William Rudd, was acting in that capacity, and was the acceptor of the bills when originally created; that when he qualified as agent he simply renewed the bills theretofore carried by plaintiff with his predecessor as agent; that each of them evidenced the same debt, and that each was for the use and benefit of the Rudd estate; that there was usury embraced in all of them, and that the amount therein was known with absolute certainty to plaintiff, but that he had no knowledge or information as to how much, and he asked that plaintiff be required to state specifically when each of the bills originated, the dates when they were renewed, and the amount of interest paid at the date of each renewal, and that the usury embraced therein be eliminated. Thereupon plaintiff filed its amended petition, setting out fully the history of the bills and the usury contained in each, which was sworn to by the president of the bank. Slack, as agent, filed answer to the amended petition, in which he pleads lack of knowledge or information sufficient to form a belief as to whether the history given by the bank of the bills and the usury contained therein are correct, and averred that he believed that there was more usury in the bills than was admitted by plaintiff, but that he could not state how much. Plaintiff demurred to the answer as amended, which was sustained, and judgment was rendered against Slack, as agent of the Rudd estate. The defendant Jolm Murphy filed a general demurrer to the petition, and he also filed an answer, in which he. denies that he promised to pay either of the bills sued on, but alleges that he was a mere accommodation indorser thereon; that he did not know, or have information sufficient to form a belief, as to whether plaintiff presented the bills at maturity at the place where they were made payable, or demanded payment, or that payment was refused, or that the bills were, in fact, protested for nonpayment, except as furnished by the protest filed with the petition, ■and files as an exhibit with his answer the various notices received by him from the notary pxiblic, of which the following is a specimen: “Daviess County, City of Owensboro, February G, 189G. Please take notice that a bill of exchange for fl, 000.00, drawn by W. M. Rudd on R. W. Slack, agent of the Rudd estate, in favor of John Murphy, or order, dated December 5, 1895, payable 60 days after date, at Owensboro, Ky., indorsed by John Murphy, was this day protested by. the undersigned notary public for nonpayment. The holder thereof looks to you for payment. To John Murphy. G-us T. Brannon, Notary Public.” The notice of protest on each of the bills is alike. The plaintiff filed demurrers to these answers as amended, which were sustained; and, the defendants declining to plead further, it was adjudged by the court “that the Deposit Bank of Owensboro, Ky., recover, of the defendants Wm. Rudd, John Murphy, and R. W. Slack, agent of the Rudd estate, the amount of each acceptance, with interest; . . . .” and we are asked upon this appeal to reverse that judgment for a number of alleged errors:

First, because the judgment as rendered is against R. W. Slack, to the payment of which Ms individual property may be subjected, and not against the Rudd estate, the real debtor. In response to this it may be said that the bills of exchange sued on were accepted by R. W. Slack as agent of the Rudd estate; that the suit was against him in the same capacity; and that the whole proceeding shows that it is not a claim for which R. W. Slack or his estate is personally liable, but one against the Rudd estate; and, if execution should issue on the judgment, it would go to be levied of assets in his hands as agent.

It is the next contention of appellants that the petition in neither case sufficiently avers an agreement or promise to pay. The petition alleges that R. W. Slack, agent of the Rudd estate, accepted in writing, and promised and agreed to pay, the bill in question, and that before the maturity thereof it was sold, discounted, and indorsed to the plaintiff by John Murphy, in the usual course of business. It avers an express promise to- pay by Slack, and the allegation “that it was sold, discounted, and indorsed to the plaintiff by Murphy” amounts to- an averment that he signed and delivered the bill.

The third ground relied on is that the petition, does not state facts sufficient to support a cause of action, and that it fails to refer to the act of plaintiff’s incorporation, as required by subsection 2 of section 119 of the Civil Code. This defense is not made or relied on in the answer of either of the defendants, and the question can not be raised by general demurrer.

It is also insisted by appellants that the court erred in sustaining a demurrer to their answers to plaintiff’s amended petition. We can not concur in this contention. By their original answer, the appellants allege that the plaintiff had exact information as to the amount of usury contained in the obligation sued on, and asked that it be required to state the time when the bills originated, the date of each renewal, and the amount' of interest paid thereon. The amended petition furnished specifically the information called for, and the defendants can not be permitted to say that they have not sufficient knowledge or information to form a belief as to whether the information given is true or not. If the defendants desired to challenge the correctness of the bank’s statement as to the history of the obligations sued on, or as to the amount of usury contained therein, they should do so specifically, as the amended petition furnished sufficient information to enable them to ascertain definitely the amount of such usury. The demurrer was properly sustained.

The last ground of complaint relied on by appellant Murphy is that the notice of protest was not sufficiently definite to identify the note protested. It is not necessary for a notice to give all the essential parts of the paper dishonored, or to describe it in every respect accurately. The rule, stated generally, may be said to be that “a notice is sufficient if, on the whole, it so designates or distinguishes the paper as to leave no reasonable doubt in the mind of the party notified what paper was intended.” See 4 Am. & Eng. Enc. Law, 417, and authorities there cited. The requirements of the law are considered as satisfied by any description which, under all the circumstances of the case, so designates the bill or note as to leave no doubt in the mind of the party, as a reasonable man, what bill or note was intended. (See Daniel on Negotiable Inst., Sec. 974.) Chitty on Bills, 290, says: “There are two requisites to a good notice, viz., a description of the bill, and an intimation that it has been dishonored.” In Mills v. Bank of The United States, 11 Wheat, 437, the court says: “The objection to the notice is that it does not state that payment was demanded at the bank when the notte became due. It is not necessary that ■ the notice should contain such a formal allegation. It is sufficient that it states the nonpayment of the note, and that the holder looks to the indorser for indemnity.” In the case of Young, McDowell & Co. v. Bennett, 7 Bush, 478, this court said: “It is not required that the notice of the dishonor of a bill should be set out in any particular form, nor is the party-giving it confined to specific language.” It seems to us that the protest and notice of dishonor- in each case is a substantial compliance with the requirements of the law. For the reasons indicated, the judgments in both cases are affirmed.