Bell v. Sackett, 38 Cal. 407

38 Cal. 407 | Cal. | 1869

Crockett, J., delivered the opinion of the Court :

This is an action on a promissory note, dated November 4, 1864, and payable on demand. The action was commenced November 7, 1868, and the defense is the Statute of Limitations. The first point for decision is, whether a promissory note payable on demand and containing no waiver, is entitled to days of grace. The statute leaves no room for doubt on this point. By an Act concerning promissory notes and bills of exchange, passed in 1851 (Statutes 1851, p. 523), it is provided that “three days, commonly called days of grace, shall be allowed, except on sight bills or drafts. ” The distinction between a promissory note and a bill or draft, is obvious, and is clearly recognized in the statute. When it refers to bills and drafts, it uses these terms in their legal, technical sense, and evidently does not include promissory notes. It is not very obvious why there should be a distinction in respect to days of grace between sight bills or drafts and promissory notes payable at sight or on demand; but the statute is plain, and it is our duty to obey it. We think, therefore, the maker of this note was entitled' to the three days of grace.

The next point for consideration is, whether the day on which the note was made and became due, is to be counted as one of the days of grace. It is well settled in this State, that no previous demand is necessary to maintain an action on a note payable on demand. (Zeil v. Dukes, 12 Cal. 482; Story on Promissory Notes, Sec. 29.) The action itself is a sufficient demand; and if there were no days of grace to be allowed, the note would be payable immediately after its delivery. But when days of grace are allowed, the day on which the note became due is excluded from the computation. This is well settled, both in England and America. (Story on Promissory Notes, Sec. 217 ; Ohitty on Bills, 403, et seq.; Bayley on Bills, 245.)

The note in contest being payable on demand, would have become due on the day of its delivery, to wit: November 4, 1864, except that the maker was entitled to three days of grace—in computing which, the first day (November 4th) must be excluded, under the well established rule above stated. The last day of grace, therefore, was November 7th, and the maker had the whole of that day in which to make payment. (Davis v. Eppinger, 18 Cal. 378.)

The action was commenced November 7, 1868, and the four years, after the cause of action accrued, did not expire until the last hour of that day. The action was, therefore, intime. (Cornell v. Moulton, 3 Denio, 12.)

Judgment affirmed.