Davis National Bank of Piedmont v. Kight

86 W. Va. 319 | W. Va. | 1920

Williams, Pebsident:

To a judgment recovered by plaintiff against Charles N. Ein-nell, AdmT. d. b. n. c. t. a., of D. J. Long, deceased, upon a negotiable note made by C. E. Night and endorsed for his accommodation by said D. J. Long, said administrator was awarded this writ of error.

The principal question presented is, was presentment and notice of dishonor made, within a reasonable time? The note was made September 25, 1916, payable on demand, to the order of.D. J. Long at the plaintiff bank at Piedmont, W. Va., and was discounted by it for the maker. It was never renewed but interest on it was paid at several different times, the last being for interest to April 1, 1918. D. J. Long died, te,state, April 4, 1917, leaving Mabel H. Long, his widow, as his executrix, who qualified as such on May 15, 1917. The note was protested on May 22, 1918, and notice thereof addressed to Mrs. Long, executrix, at Piedmont, W. Va., her address, and deposited in the post office at that place, properly stamped. Mrs. Long thereafter, on. the 26th of June, 1918, married and thereby became disqualified as executrix, and the appellant, Charles N. Finnell, qualified as administrator, d. b. n. c. t. a., of D. J. Long, deceased. This suit was begun by notice of motion for judgment, to be made on the 21st day of January, 1919, the first day of the January Term of the, circuit court. The case was heard by the court in lieu of a jury, by agreement of counsel, and the judgment complained of rendered against appellant, as the administrator of D. J. Long, deceased, on the 2nd day of June, 1919.

Was presentment for payment made within a reasonable time? Section 71 of the Negotiable Instruments Act says, when an instrument is payable on demand, “presentment must be made within a reasonable time after its issue.” What is a reasonable time depends upon the circumstances of each particular case. Bacon’s Adrn’r. v. Bacon’s Trustees, 94 Va. 686; 8 C. J. sec. 751; 1 Daniels on Neg. Insts. (6th ed.) sec. 604. .The reasonableness of the time is a question of fact for the jury, in this case'thq court, as the case was submitted to him in lieu of a jury." The law lays down no hard and fast rule applicable to all such cases. It is proven to be the custom and practice of the plaintiff bank to carry demand notes when the interest is kept promptly paid thereon, for long periods of time, without requiring renewals thereof. D. J. Long, the endorser, was a stockholder in, and one of the directors of the plaintiff bank and, presumably, knew of this custom of his bank. Interest on thq note was paid two or three times by the maker, before Mr. Long died and he¡, no doubt, knew of it and made no objection to the bank’s carrying the note. It was read at a number of directors’ meetings at which he was present, and at one of those meetings at which he acted as president, he being vice-president and the president being absent, he remarked when the note was read, “I guess I will have that note to pay.”

.Fifteen shares of thq capital stock of the Casper Oil and Gas Co., a corporation, were pledged by the maker of the note, either with the bank, as additional and collateral security, or with thq endorser to indemnify him as endorser, but the evidence is conflicting as to the purpose of the pledgor, nor is this fact controlling. The maker did not testify, and the testimony of the witnesses is conflicting. Regardless of this fact, and in view of the circumstances, and the custom of the bank, we cannot say as a matter of law, that the delay for a year and eight months to present the note was unreasonable. Moreover, the alleged' delay is not shown to have prejudiced the endorser’s estate, which is entitled to no higher consideration than he would be entitled to if living. It is argued that the pledged stock in the Caspar Oil and Gas Co. depreciated in value in the meantime, and only $15,00 per share was realized for it. But this is only a presumption, there is no evidence as to its actual value at any time prior to the dissolution of said- company, at which time; it paid only $15.00 per share. FTor is there any evidence respecting the solvency or insolvency of the maker of the note.

The notice of protest is sufficient. Secs. 95 and 96 Keg. Inst. Stat. It identifies the note and states that payment of it was refused by plaintiff bank, at which it was payable, on a certain day named, because there were no funds with which to pay it. The bank at which it was payable being also the holder of the note, the presumption is that the note was in the bank during business hours. 1 Daniel Neg. Inst. (6th ed.) sec. 657; Folger v. Chase, 18 Pick. 63 and Doherty v. First Nat’l. Bank of Louisville, (Ky.) 186 S. W. 937.

The judgment will be affirmed.

Affirmed,.