132 F.2d 971 | 5th Cir. | 1943
Appellant is the owner of certain bonds, issued by appellee in 1919, which provide that the principal and interest thereon shall be payable at the banking house of the National Park Bank in New York City. In 1927 there was a merger of said bank and the Chase National Bank in New York, under the National Banking Act, 12 U.S.C.A. § 33, and the merged institutions continued to operate as the Chase National Bank. Appellee used the National Park Bank as paying agent until the date of the merger, and for several years thereafter used the Chase National Bank. It then elected to use the First National Bank of Gainesville, Florida, and notified its bondholders to that effect.
On January 1 and July 1, 1940, the maturity dates of interest coupons attached to said bonds, appellee had no funds at the Chase National Bank to pay the obligations; it had ample funds for that purpose at the First National Bank of Gaines-ville; but appellant declined to present his
The agreement as to time and place of payment of the bonds was a material part of the contract. Time is of the essence of any contract providing for the payment of interest, and a material change in the place of payment may involve not only forbearance from use of the money until the due date but also forbearance thereafter until collection may be effected, with the additional burden of collection charges not in contemplation of the parties when the contract was made. The provision for payment at the National Park Bank was binding upon and enforceable against both parties.
The statute under which the merger was effected provides that the corporate existence of each of the constituent banks participating in the consolidation shall be merged into and continued in the consolidated national banking association; that the consolidated association shall be deemed to be the same corporation as each of the constituent institutions; and that all rights, franchises, interests, and every species of property of each constituent bank is vested in the merged institution, to be held, enjoyed, and exercised in the same manner and to the same extent as held, enjoyed, and exercised in the hands of the constituent institution prior to consolidation.
For the reasons stated, appellant was entitled to the relief sought, and his motion for a summary judgment should have been sustained. The judgment appealed from is reversed, and the cause remanded to the district court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Cf. Raymond v. Tyson, 17 How. 53, 15 L.Ed. 47; Meyer v. City of Muscatine, 68 U.S. 384, 1 Wall. 384, 17 L.Ed. 564; Mayor and Aldermen v. Lombard, 51 Miss. 111; Skinker v. Butler County, 112 Mo. 332, 20 S.W. 613; Kalman v. Treasure County, 84 Mont. 285, 275 P. 743; Daniels on Negotiable Instruments, See. 105; 40 Am.Jur., Sections 19, 20.
12 U.S.C.A. §§ 34, 34a.
Cannon v. Dixon, 4 Cir., 115 F.2d 913; 1 Zollman, Banks & Banking, § 286.