54 Wash. 553 | Wash. | 1909
This is a suit upon a promissory note executed by the defendant December 21, 1904, and due December 21, 1909. The ground upon which the plaintiff contends that he is entitled to recover at this time is the alleged default in the payment of interest installments past due, giving him the right to declare the whole debt due. Upon a trial before the court, findings and judgment were made and rendered favorable to the plaintiff, from which the defendant appeals to this court. Exceptions were duly taken by appellant to certain of the court’s findings, as well as the court’s refusal to make others proposed by appellant. All of the evidence is brought here for our review of the case, and so far as the facts are concerned which, in our opinion, determine the rights of the parties, they are practically undisputed, and may be summarized as follows:
The plaintiff is a resident of Spokane, and the defendant is a domestic corporation of the state of Washington with its place of business at Spokane, at all times since the making of the note sued upon, which is in words and figures as follows :
“$5000.00 Spokane, Wash., Dec. 21st, 1904.
“On or before Dec. 21, 1909, after date, without grace, we promise to pay to the order of Maida T. Carson Five Thousand Dollars in Gold Coin of the United States of America of the present standard value, with interest thereon, in like Gold Coin, at the rate of 10 per cent per annum from date until paid, for value received. Interest to be paid monthly and if not so paid the whole sum of both principal and interest to become immediately due and collectible, at the option of the holder of this Note. And in case suit or action is instituted to collect this Note, or any portion thereof, we promise and agree to pay in addition to the costs and disbursements provided by statute a reasonable sum of Dollars in like Gold Coin for Attorney’s fees in said suit or action.
“Due Dec. 21, 1909, at Spokane, Wash.
“Washington Mill Co.
“Per W. H. Acuff, Pres.
“Per J. C. Barline, Treas.”
This is not a question of charging the company primarily liable upon this note as to its ultimate liability. The appel
In 1 Daniel, Negotiable Instruments (5th ed.), § 90, the rule is laid down that, “Where no place of payment is expressed in a note the place of payment is understood to be where the maker resides.” And the supreme court of the United States in the case of Cox v. National Bank, 100 U. S. 704, 712, 25 L. Ed. 739, uses this language:
“Where no place of payment is expressed in a bill or note, the general rule, in the absence of any agreement or circumstance fixing or indicating a different intention, is that the place of presentment is the place where the acceptor or maker resides, or at their usual place of business.”
See, also, Baily v. Birkhofer, 123 Iowa 59, 98 N. W. 594; Oxnard v. Varnum, 111 Pa. St. 193, 2 Atl. 224, 56 Am.
At all times since the making of this note, the appellant had an established place of business in Spokane. The original payee and each successive owner of the note, being all residents of Spokane, knew of appellant’s place of business there. The note was at no time, after the last payment of interest, presented there, and the only knowledge of the whereabouts of the note on the part of the appellant, after the last payment and before the commencement of this action, was that the same was in possession of a bank in another state. In view of the law, which we regard under the circumstances of this case as fixing the place of payment specific and certain as if named in the note at the place of business of appellant, we think it was not required to go elsewhere to pay interest thereon in order to prevent the owner from exercising his option to declare the whole debt due on account of interest remaining unpaid. Before the owner has the right to exercise such option he must furnish the maker of the note an opportunity to pay at the place where the same is payable, whether that place is determinable by express words in the note or by implication of law. Our negotiable instruments statute, Laws of 1899, p. 353, § 70, provides:
“Presentment for payment is not necessary in order to charge the person primarily hable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part.”
As above indicated, this note may not be “by its terms payable at a special place,” and for that reason we do not base our decision upon this statute, but upon the law which, applied to these undisputed facts, does fix a special place for its payment independent of statute. The appellant being ready and willing to pay at the time and place for payment,
We conclude that the judgment of the superior court should be reversed, with instructions to dismiss the action. It is so ordered.