Greeley v. Whitehead

35 Fla. 523 | Fla. | 1895

Mabry, C. J.:

It is now the accepted doctrine in the United States-that in a suit-against the maker of a promissory note, payable at a particular time and place, it is not necessary to allege in the declaration a presentation for payment at the place named, or to prove such presentation at the trial in order to entitle the plaintiff to recover on such note. What was the English rule on the subject prior to the decision in Rowe vs. Young, 2 Brod. & Bing. 165, rendered in 1820, is uncertain, as there was great diversity of opinion on the subject among English judges. It was at that time decided by the House of Lords, that if a bill of exchange be accepted, payable at a particular place, the declaration must aver presentment at that place, and the averment must be proved. It seems that prior to that time the King’s Bench had followed the rule now accepted by the American courts. In 1839 the Supreme Court of the United States decided, in the case of Wallace vs. McConnell, 13 Peters, 136, that in an action against the maker of a note, payable at a particular time and place, no demand for payment need be averred or proved; and since that decision the American courts have been practically unanimous in holding the same doctrine. Reeve vs. Pack, 6 Mich. 240; Montgomery vs. Tutt, 11 Cal. 307; Caldwell vs. Cassidy, 8 Cowen, 271; Wolcott vs. Van Santwoord, 17 Johns, 248, S. C. 8 Am. Dec. 396; Hills vs. Place, 48 N. Y. 520, S. C. 8 Am. Rep. 569; Payson vs. Whitcomb, 15 Pick. 212; Carley vs. Vance, 17 Mass. 389; Lyon vs. Williamson, 27 Maine, 149; Armistead vs. Armisteads, 10 Leigh, 536; Washington vs. Planter’s Bank, 1 How. (Miss.) 230, S. C. 28 Am. Dec. 333; Yeaton vs. Berney, 62 Ill. 61; Humphreys vs. Matthews, 11 Ill. 471; Ripka vs. Pope, 5 La. Am. 61, S. E. 52 Am. Dec. 579; 3 Randolph on Commercial Paper, sec. 1117; Story on Promissory Notes, sec. 228 and notes; Tiedeman on Commercial Paper, sec. 310. While the American courts uniformly hold that in a suit on a note against the maker, it is unnecessary for a plaintiff to aver a presentation of the note for payment at the time and place designated for that purpose, it must not be supposed that the maker can not set up as a matter of defense, so far as costs and damages are concerned, the fact that he was prepared with funds and ready to make payment of the note at said time and place, and that the holder was mot there to receive the money. The theory of American courts is, that the maker of the note, being the principal debtor, is still liable to pay, though the mote be not presented at the time and place designated for payment, and that it devolves upon him to show as a matter of defense a readiness with the money at the fame and place to meet the note, and such defense must be set up by plea, and can only be in bar of damages and costs. Such a plea, in order to be available, must allege that the maker was ready to pay the money at the time and place named; that he has ever since been ready there to pay the note, and that he brings the money into court for the plaintiff. Carley vs. Vance, and Lyon vs. Williamson, supra.

The first plea of the defendant below was clearly demurrable. It goes no further in its allegations than that the defendant, at the time and place named for tire payment of the note, had the money ready to pay the same and interest thereon, and would have paid the same had it been presented for payment, which had never been done. It does not make a tender of the money in court, nor does it allege that defendant ¿had ever since the note matured, been ready with the money to pay. It falls far short of the requisites of a .good plea setting up such a defense. Forcheimer vs. Holly, 14 Fla. 239.

The second plea is more extensive in its allegations, it alleges that ever since the note became due defendant had the amount of money named therein and interest, at the designated place of payment, and had been ■ready and willing to pay the same, but the note was never presented for payment; that plaintiff had always declined to present the note for payment, and requested payment of the interest thereon semi-annually, which was always promptly paid. Profert of the amount due on the note was made and paid into court. Conceding that the allegation as to the profert in curia, in reference to which there is no contention here, is sufficient, it is evident that the second plea is good under the rule of pleading above stated, unless the averment relating to the payment of interest after maturity of the note render it bad. It is insisted for appellee that the payment of the interest on the note after it matured, as alleged in the plea, was a waiver by the maker of any defense that he might have set up by reason of a failure on the part of the holder to present the note for payment, and the rule as to a waiver of protest and notice by payment, or promise to pay, on the part of an endorser of a note, is invoked. The rule is well settled that a payment on a note, or a clear and explicit promise to pay it after maturity, by an endorser, with full knowledge of the fact that it had not been presented for payment, operates as a waiver of such presentation and protest. Whitaker vs. Morrison, 1 Fla. 25, S. C. 44 Am. Dec. 627; Curtis vs. Sprague, 51 Cal. 239; Salisbury vs. Renick, 44 Mo. 554; Hughes vs. Bowen, 15 Iowa, 446; Smith & McCord vs. Curlee, 59 Ill. 221. The principle upon which the maker of a note is held liable is not exactly the same -as that applicable to the liability of an endorser. The maker is the primary debtor, and, as we have seen, no presentation at all is necessary, to hold him liable. But while this is true, he may show by way of defense, in a suit against him on a promissory note, payable at a particular time and place, that he was then and there ready with the money to make payment, and has ever since continued so to be; and in that event, under proper plea with tender in court of the money due, he will not be liable for costs, damages or expenses of the suit. In such a case he will have done everything under his obligation with the holder of the note to avoid costs, damages or expenses, and in justice should not be burdened with them.

It will be observed that the second plea alleges, in addition to the readiness of the maker to pay the note and interest at the time and place of payment, that the holder declined to present the note for payment, but requested payment of interest thereon semi-annually, which was promptly paid. The note was past due something over three years when suit was instituted on it, and from the allegations of the plea it is inferable that both maker and holder of the note acquiesced in a postponement of its payment, upon the payment of semi-annual interest thereon, but it is not made to appear that the postponement was for any fixed time. The interest on the note was ten per cent, per annum, and it appears from the plea that, though the note was not presented for payment, semi-annual interest thereon was requested and paid. This of course was a recognition, on the part of the maker, that the holder was entitled to interest on the note so long as he permitted it to run, but it was then past due, and was liable to be sued on at any time at the option of the holder. The contract in the note is, that if not paid at maturity, it may be placed in the hands of an attorney for collection, and, in that event, an additional sum of one hundred dollars for attorney fees was agreed to be paid. The contingency expressed in the note, upon which the liability to pay the attorney fee depended, to-wit: the placing the note after maturity in the hands of an attorney for collection, is not denied; but the-defense-in the plea is that the defendant was all the time ready at the proper place to pay the note, which was never presented for payment, but only the interest thereon demanded, and which was promptly paid. If the plea had alleged that by agreement based on sufficient consideration the principal debt had been postponed for a definite time, and before the expiration of that time suit had been instituted, without presenting the note for payment, a different question would arise. But the plea here does not present such a defense. It appears to us that the payment of the interest on the note after its maturity, for the length of time and under the circumstances stated, amounts to a waiver of any defense that the maker might have had by reason of the failure of the holder to present the note at the time of its maturity. The right under the circumstances stated to cease paying interest on the note after maturity, by reason of a failure to present it at the time and place of payment would exist as well as an exemption from costs and expenses in the event of .a suit, but the plea expressly alleges that defendant continued to pay semi-annual interest on the note after maturity. In the -judgment of the court the second plea was also bad, and the court did not err in sustaining the demurrer to it.

The only questions here relate to the decision of the court on the demurrer to the pleas, and our conclusions thereon already stated results in an affirmance of the judgment of the Circuit Court, and an order will be -entered accordingly.