Dana v. Sawyer, 22 Me. 244

Dana v. Sawyer

22 Me. 244 | Me. | 1843

The opinion of the Court was by

Shepley J.

— This case is presented upon an agreed state*245ment of facts, from which it appears, that a demand for payment was made upon the maker of the note, between eleven and twelve o’clock at night on the day that it became payable, by calling him from his bed; and that he did not pay it. There is no further statement of any thing else said or done, except that a notice and demand for payment was left with him. When a bill or note is payable at a bank, bankinghouse, or other place, where it is well known, that business is transacted only during certain hours of the day, the law presumes, that the parties intended to conform to such established course of business, and requires, that a demand should be made during those business hours. Parker v. Gordon, 7 East, 385. The cases of Garnett v. Woodcock, 1 Stark. R. 475, and of Henry v. Lee, 2 Chitty R. 124, may show an exception to this rule, that, when a person is found at such place after business hours authorized to give an answer, the demand will be good. While it may be difficult to reconcile these cases with the case of Elford v. Teed, 1 M. & S. 28. When the bill or note is not payable at a place, where there are established business hours, a presentment for payment may be made at any reasonable hour of the day. Leftley v. Mills, 4 T. R. 174; Barclay v. Bailey, 2 Campb. 521; Triggs v. Newnham, 10 Moore, 249; Wilkins v. Jadis, 2 B. & Ad. 188. What hour may be a reasonable one has come under consideration in those cases. In the first of them Mr. Justice Buller observes, that “ to say, that the demand should be postponed till midnight, would be to establish a rule attended with mischievous consequences.” In the second Lord Ellenborough said, “if the presentment had been during the hours of rest, it would have been altogether unavailing.”- In the third this remark, among others, is quoted and approved by C. J. Best. In the fourth, Lord Tenterden remarked, that “ a presentment at twelve o’clock at night, when a person has retired to rest, would be unreasonable.” These observations, so just and so applicable to this case, authorize the conclusion, that the demand was not made at a reasonable hour, unless the fact, that the maker was seen and actually called upon at that time *246should make a difference. Perhaps in analogy to the exception already noticed, it might be proper to admit of one in this and the like cases, if it should appear from the answer made to the demand, that there was a waiver of any objection as to the time, or that payment would not have been made upon a demand at a reasonable hour. But there is nothing in this agreed statement to show, that payment might not have been refused because the demand was made at such an hour, that the maker did not choose to be disturbed, or because he could not then have access to funds prepared and deposited elsewhere for safety.

Plaintiff nonsuit.