24 A.L.R. 1047 | N.D. | 1922
Lead Opinion
This is an action to foreclose a conditional sale contract. The plaintiff recovered a judgment, and the defendant appeals. The facts are that the defendant, in August, 1920, purchased of the plaintiff a Mahlstcdt Multi-Color Printing Press for the sum of $1,000, paying $175 in cash and agreeing to pay $175 September 5th following. The balance of $650 was covered by notes of $50 each, the first one due October 5th, 1920, and one falling due each month thereafter until the whole would be paid. The sale contract reserved title in the plaintiff until payment of all notes, and contained a provision that in case default should be made in the payment of any of them, the whole of the balance of the purchase price and the unpaid notes should become immediately due and payable. The notes were dated Eargo, North Dakota, August 17th, 1920, and each one was expressed to be payable to the order of the plaintiff “at Fargo, North Dakota.” The notes falling due prior to April 5th, 1921, were paid, but that note and subsequent notes, with interest, were not paid when due. This action was begun by the service of summons and complaint in June, 1921. In the complaint the plaintiff declared an election to treat the whole of the balance as due. Judgment was entered for the full amount unpaid and special execution awarded.
The principal error argued on this appeal is that up to the time the action was brought there had been no default in the payment of the purchase price notes to justify the bringing of an action, or, at any rate, the entry of a judgment covering the amount of the purchase price
We are clearly of the opinion that the designation of a city in which the instrument is payable is not the designation of a “special place” within this provision of the statute. The purpose of the statute seems to us to be obvious. It subserves the convenience of both parties in that it contemplates the designation of a particular place where the-holder of the instrument, on the one hand, may go with the expectation of receiving the amount due or of ascertaining that the instrument will not be met, thus obviating the necessity of seeking out the obligor; while, on the other hand, it enables the obligor to make provision against default or dishonor by having the funds at such place, thereby stopping interests and obviating costs. The clear purpose of the statute would not be carried out, in our opinion, by'giving to the expression “a special place” a meaning which would make it coextensive with the borders of a city.
The appellant relies upon the case of Bardsley v. Washington Mill Co. 54 Wash. 553, 132 Am. St. Hep. 1133, 103 Pac. 822; but in that case, while the instrument was payable “at Spokane, Washington,” the court declined to hold that the note was, by its terms, payable at a special place within that section of the Neg. Inst. Act heretofore quoted in part, and it declined to base its decision upon the statute. .It was held, however, that the law, aside from the statute, fixed a special place for its payment, so that if the obligor were able and will
Concurrence Opinion
(specially concurring). I concur in an affirmance. I agree that the notes involved were not payable at a special place within the moaning of § 6955, Comp. Laws, 1913; Uniform Neg. Inst. La.iv, § 10. In my opinion the case of Bardsley v. Washington Mill Co. 54 Wash. 553, 103 Pac. 822, 132 Am. St. Rep. 1133, does not express a contrary view. It does not necessarily follow that the mere failure of the maker to pay the notes due at maturity is such a default as entitles the payee to absolutely declare the whole debt' due and payable if circumstances might otherwise show equitably that the defendant was ready, willing, and' able to make payment of the notes that were due. This is an equitable action. But the defendant has relied entirely upon the law defense of failure to make presentment at a special place. No other defense was presented. Furthermore, at the