131 Ala. 294 | Ala. | 1901
The plaintiff brought his action to recover damages from the defendant bank.for an alleged wrongful protest by said bank of a note made and executed by plaintiff. The note in question reads as follows:
“52.50. Birmingham, Ala. Nov. 11, 1899.
Six months fixed after date I promise to pay to the order of Mrs. E. L. Watts Fifty-two & 50-100 Dollars. Value received, with interest from maturity until paid. Payable at the First National Bank of Birmingham, Ala. The makers and endorsers of this note hereby expressly waive all right to claim exemption allowed by the constitution and laws of 'this or any other State, and agree to pay cost of collecting this note, including reasonable attorney’s fees, for all services rendered in any way,
[Signed] Mark Doyle.”
The endorsements on the note were as follows: “E. L. Watts,” and, “Pay to First National Bank or order,” signed, “Industrial Ins. Co., Sam T. Hurst, Jr., Cashier.”
The note was protested for non-payment on May 11th, 1900. It is conceded that by the terms of the note, “six months fixed after date” precluded the idea of days of grace, and it is not contended by appellant that he was entitled to the three days of grace, nor is it contended that the provision contained in the note, waiving notice and protest, took away from the holder the right to have the same protested for non-payment on the day of its maturity. — Bellinger & Ralls v. Glenn, Brockway & Co., 80 Ala. 190; White v. Keith, 97 Ala. 668.
The vital question in this case is as to whether or not- the note was protested before its maturity, the contention of the appellant being that the note did not mature until the 12th day of May, -whereas it was protested on the 11th day, and the contention of appellee being that the note matured on the 11th, the day of its protest for non-payment.. By the terms of the note it became due and payabl e six months after date. In Donegan v. Wood, 49 Ala. 252, upon a similar question, it was held, in computing the time, that the day of the date of the note should be excluded. It was there said: “In this case the bill is dated on the 30th day of January, 1861, and is payable twelve months after date. This language excludes the day of the date, which would make the day of payment, exclusive of the days of grace, fall on the 31st day of January, 1862.” We approve of what was there said as to the exclusion of the day of date in computing the time, but it is quite evident that the court fell into an error in its computation. There can be no question that when a note is payable so many
Affirmed.