Loud v. Merrill , 45 Me. 516 ( 1858 )

The opinion of the Court was drawn up by

Hathaway, J.

Assumpsit against the defendant, as second indorser of a negotiable promissory note, dated Dec. 17, 1855, for five thousand dollars, signed by Reed & Page, payable to the order of Rufus K. Page, one year after date, at the Suffolk Bank, Boston, and indorsed by Rufus K. Page and the defendant. The plaintiff’s attorney introduced the note, the protest duly certified, by S. Andrews, a notary public, and the testimony of Joseph Young, Thomas Marshall and the plaintiff, by which it was proved that the note was duly presented for payment, protested for non-payment, and that the defendant was duly notified.

The defendant alleged that the note was prematurely presented for payment, and that he was not so notified of its dishonor as to render him liable as indorser, and introtroduced a notice, which he testified, was the only notice which he received, and by which it appears, that the note therein described, was presented for payment three days before its maturity.

“ The protest of any fpreign or inland bill of exchange, or promissory note, or order, duly certified by any notary public, under his hand and official seal, shall be legal evidence of the facts stated in such protest as to the same, and also as to the notice given to the drawer or indorser, in any Court of law.” R. S. of 1841, c. 44, § 12; 41 Maine, 302.

It was not incumbent on the plaintiff, to prove that the defendant received, the note. It was sufficient for him to prove that the note was duly presented for payment at the proper time and place; that payment was refused; that a legal notice to the defendant was made by the proper person, and that the letter, enclosing it to the defendant, was properly directed, seasonably mailed and the postage paid. Bailey on Bills, 275; 2 Greenl. Ev. § 193; Shed v. Brett, 1 Pick. 401; Lord v. Appleton, 15 Maine, 270. All these things appear, by the protest and other evidence introduced by the plantiff, to have been done.

If the defendant would disprove the statements certified in the protest, the burden is upon him. The single fact that he received another notice, disproves none of them.

The plaintiff’s proof being direct and positive of a legal demand and notice, and that proof being uncontradicted, the liability of the defendant, as indorser, is established.

Reed & Page and Rufus K. Pago, were in company in the lumbering business. The defendant testified “ that the plaintiff told him that Reed & Page paid him twelve per cent, interest on this note for the money when they had it.” That testimony was not contradicted. The defendant indorsed for their accommodation. It would seem, therefore, that the note was prepared for the purpose of obtaining a loan by Reed & Page from the plaintiff, for a year, at twelve per cent, interest, which was paid to him when they received the money. The plaintiff, therefore, received six per cent, usurious interest, which, for the year and days of grace, amounted to three hundred and two dollars and fifty cents, which sum must be deducted from the note, and the plaintiff is entitled to judgment for the balance of the note with interest thereon from its maturity, together with three per cent, damages for protest for non-payment, out of the State. R. S. of 1841, c. 115, § 110. In such case of usury, the statute of 1846, c. 192, (R. S. of 1857, c. 45, § 2,) gives costs to the defendant and no costs to the plaintiff. Defendant defaulted.

Tenney, C. J., Rice, Appleton, May, and Davis, J. J., concurred.