Zadock Sasscer vs. The President, Directors and Company of the Farmers Bank of Maryland, 4 Md. 409

Mason, J., delivered the opinion of this court. This an action of assumpsit, instituted by the appellees against the appellant, as an endorser of a promissory note. There are no questions of pleading involved in the case, nor is there any dispute about the execution of the note, or of its endorsement by the appellant. The whole controversy relates to the sufficiency and regularity of the notice of protest, and to the legality of the evidence adduced by the plaintiffs to establish such notice, and these several questions are presented by four bills of exceptions, taken by the defendant.

The plaintiffs to support their case, did not profess to offer directly in evidence, as might have been done, the notarial record of the notary who protested the note, nor the original protest, but they called M. C. Karney, the notary himself, to' prove the circumstances under which the protest was made, and the notice given. To enable him to do so, he “produced into court the record of his notarial acts, and also the original protest, and proposed to inspect the same, with a view of refreshing his memory in regard to the subject.” To this the defendant objected, but the eourt overruled his objection.

The witness after having refreshed his recollection, by an inspection of the original papers, proceeded to give the contents thereof in full, and to detail some other facts in addition to those set out in the papers, but not contradictory or inconsistent therewith.

The defendant also objected to this testimony, on the ground that it was not competent for the plaintiffs to offer any evidence, “adding to or contradicting the notarial record and original protest, the defendant insisting, that by placing said original protest and record thereof, in the hand's of the witness for the purpose aforesaid, the plaintiffs had made said instrument evidence in the cause.” This objection was also overruled, and hence the first exception.

The court were right we think, in overruling the defendant’s first objection, which related to the right of the witness to refer to tbs paper, for the purpose of refreshing Ms memory. We do not deem it necessary in the view we lake of the case, to say whether the witness’ memory was sufficiently refreshed by the reference to the papers, to make his statements of the facts contained in them evidence or not, yet we are clear that it was competent for the plaintiffs’, to use the writings for the-purpose ofassisting the memory of the witness.

In Greenleaf’s Ev., 1 vol., sec. 436, it is stated, that a witness may refresh and assist his memory by the use of a written instrument, and in the present case this was all that the plaintiffs proposed that the witness should do.

Although, it is true as has already been stated, the plaintiffs did not, in the first instance, offer the notarial record and protest as evidence per se, yet we think that having placed them in the hands of the notary, and their contents having been-submitted to the jury, whether by the plaintiffs or defendant, they thereby became evidence in the cause, and entitled to as-much weight as if they had been originally offered for that purpose.

These entries'having been made in the usual and regular course of business’, and contemporaneously with the facts they recite, and having been verified by the person who-made them, are we think, properly evidence in the cause. Notwithstanding these papers were before the court, we do not concede the correctness of the objection made by the defendant, that it was not competent for the plaintiffs to offer any evidence of notice, in addition to that contained in the notarial record. The witness did not propose to, nor did he in fact contradict this record. In the case of Sangston vs.

Graham, 1 Maryland Rep., 59; and again, in Hunter vs. Van Bomhorst, ibid. 504, this court recognized the right of the plaintiff to offer evidence of notice in addition to, if not inconsistent with, that contained in the protest. In the latter case, the proof, as shown by the protest, was deemed insufficient to establish a legal notice to the endorser, of the dishonor of the note, yet the plaintiff was permitted to supply the omission by independent testimony. The reason for all this, is deemed perfectly sound and manifest.

The entries by the notary are but his memoranda of what he did, and may or may not contain a full statement of all his official acts; and, therefore, when any material circumstance of the transaction has been omitted in the record, it is but proper that the omission should, if it can, be supplied. These views would appear to be in perfect harmony with the spirit of the act of 1837, chap. 253, by which notarial records are made evidence to establish notice to the endorser.

This act excludes the idea that the protest is to be the only evidence upon the question, by providing that it “shall be prima facie evidence, that such notice has been sent or delivered, in the manner therein statedThe circumstances detailed by Karney, relating to this transaction, though independent of, but not inconsistent with the notarial record and protest, were evidence.

In addition to the facts disclosed by that record and protest, to the truth of all of which the witness swore positively, he proves that in the notice sent to the defendant, he informed him that the note was unpaid, and that he deposited the notice in the post office in time to go by the next mail thereafter. In this way the plaintiffs have established their whole case, as we shall presently show, by competent and legal evidence. So much for the first exception. We are not prepared to sustain any of the objections made by the appellant to the ruling of the court below, under the second exception.

This exception presents the question of the sufficiency of the notice of protest, upon the evidence recited in the first bill of exception. In this case the note was made payable at the bank, and was at the bank on the day it fell due, for payment. It not being paid, the notary informed the endorsers that it had not been paid, and that they were held responsible for its payment. So far, this was sufficient, as the notice imported that the note had been dishonored. 1 Md. Rep., 59 and 504. So much for the first objection pressed upon us by the appellant under this exception.

As to the second : The note would have fallen due, including the days of grace, on the 26th day of December 1847. That day was Sunday, and the day preceding it, being the 25th December, was of course Christmas day, and the note therefore, was protested on Friday the 24th. No evidence was offered to show any general commercial usage, by which the day of payment was anticipated under such circumstances, and we are therefore asked to say that the note was prematurely protested, and as a consequence the notice of protest was unavailing. We think otherwise.

It is established that by commercial usage, Sundays and great festivals, such as Christmas, are dies noi\ in law and, that courts of justice will judicially take notice of those days and of the commercial usage to observe them, without any proof upon the subject, and therefore the pote was properly protested on the 24th of December. In the third place it is said, that the notice was defective, because it did not properly describe the note, in this, that the name of an antecedent endorser was not mentioned.

The rule upon this subject is, that the notice should contain so true a description of the note, as to enable the endorser to ascertain its identity, and to know to what particular note the notice applies. In the case of Mills vs. Bank of the United States, 11 Wheat., 436, the principles applicable to this subject are thus laid down by Judge Story: “It cannot for a moment be maintained, that every variance, however immaterial, is fatal to the notice. It must be such a variance, as conveys no sufficient knowledge to the party of the particular note, which has been dishonored.

If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility.” The variance or misdescription complained of in this case, is the omission to mention all the endorsers on said note. If the endorser has thus been misled, the notice was insufficient and invalid. Whether he has, or not, been misled by this omission in the notice, is a question of fact for the jury to determine.

If the misdescription be the defect in the notice relied on by the defendant in his prayer we are now considering, then, clearly, the prayer was wrong, because it asked ihe court to say, without the intervention of a jury, that this defect in the notice was fatal, whereas the most the defendant could ask for, would be that the court should submit the question to the jury, to find if its effect had been to mislead the defendant.

In case of misdescription, the question to be determined, is not one of law as to the sufficiency of notice, but a question of fact, whether the endorser was misled by the mistake. 5 Barbour, 681. 9 Peters, 44. 12 Mass., 7. 11 Wheat., 436. The third exception was abandoned in argument, and we will therefore not notice it. The fourth exception raises the question, whether or not. the notice was placed in the post office in due time.

Much of the argument upon this point, was based upon the assumption that there was evidence in the record, tending to show that the notice was not put into the post office until after the mail of Monday, (which was the first after the protest,) had gone or was closed. We are relieved from determining what might be a very difficult question, and one upon which there is considerable conflict of authority, because we can discover no testimony in the record, out of which the question could legitimately arise.

Where the weight of testimony is all upon one side, in regard to any fact or question, it would he improper for the court to submit such a question to the jury. In a case like the one now before us, it is only where the testimony is sufficient to raise a rational doubt in regard to the facts touching the legality of notice, that the interposition of the jury would be invoked. But this is not such a case. The witness, Karney, swears positively that the notice was placed in the office, in time to go by the first mail after protest.

If this be true, the plaintiffs have fulfilled the requirements of the law, and it is immaterial when the letter was mailed, or left the office for its place of destination, or when, if ever, it was received by the endorser to whom it was directed. But it is said that Karney’s testimony is not all the proof in the cause, and that the evidence of the post-master at Marlborough was sufficient to have warranted the submission of the question to the jury. We can see nothing in the testimony of this witness to raise any doubt upon the subject.

He merely infers that the notice in question did not come by the mail of Monday, because he did not send from his office a similar notice for another endorser, which was mailed at the same time at Annapolis, to Nottingham until Saturday instead of Tuesday, these two days being the only mail days from Marlborough to Nottingham. But this inference if there is any force in it whatever, is entirely rebutted by the additional fact proved by the same witness, which was that it was the uniform practice of the post-master at Annapolis, to post-mark letters on the day they were sent from that office.

The notice before us was post marked at Annapolis, on Monday, the 27th, therefore, (according to the same witness,) it went on the mail of that day. Besides, suppose it did not reach Marlborough until Wednesday, as is inferred by this witness, does it thereby follow it did not leave Annapolis on Monday ? and suppose both inferences be true, that it did not reach Marlborough till Wednesday, or leave Annapolis till that day, would it thereby follow the notice was not placed in the office in time for the Monday’s mail ?

These inferences are all based upon the erroneous assumption, that post-masters and mail agents can make no mistakes. While we are not to presume ignorance or neglect of duty on the part of post-masters, we cannot so far assume fidelity in them, as to falsify the positive statements of another public officer, in support of his own official acts, the regularity and fidelity of which are equally the subject of legal intendment or inference. Upon the whole we can discover no error in the ruling of the court below, sufficient to warrant a reversal of this judgment. Judgment affirmed.