191 A.D. 870 | N.Y. App. Div. | 1920
The action was upon a promissory note made by the defendant, payable to the plaintiff. The note, so far as pertinent to the question involved upon this appeal, was in the following form:
“ $3,100 00 /100 New York, September 10, 1918.
“............after date, without grace, the undersigned for value received hereby promises to pay to George Keister or order at his office No. 56 West 45th Street, New York City, the sum of $3,100 00 /100 with interest at the rate of 6% per annum, having deposited herewith and pledged as collateral security for the payment of this and any other liability of the undersigned Keister now due or hereafter to become due the following property: five hundred (500) shares of the capital stock of the Cuban Motor Spirits Company. * * * ”
The instrument then further provided for a sale of the said collateral pledged as security for the payment of the note in case of default in payment, and was signed by the maker, Henry Clay Wade.
The answer of the defendant admitted the execution and delivery of said note to the plaintiff, but alleged that the defendant made the note for the benefit and accommodation of the plaintiff and without the plaintiff’s paying to the defendant any value or consideration therefor.
The action was tried and presented to the jury upon the sole issue as to whether or not the note was upon due consideration paid by the plaintiff to the defendant. The plaintiff, after proving the execution and delivery of the note
I think the court was clearly in error in holding the note in suit to be invalid and unenforcible as an incomplete instrument.
“ Form of negotiable instrument. An instrument to be negotiable must conform to the following requirements: * * *
“ 3. Must be payable on demand, or at a fixed or determinable future time; * *
Section 26 defines an instrument payable on demand as follows:
“ When payable on demand. An instrument is payable on demand:
“1. Where it is expressed to be payable on demand, or at sight, or on presentation; or,
“ 2. In which no time for payment is expressed.”
The note in suit clearly satisfies all of said statutory requirements as a negotiable instrument. It provides as follows:
“............after date, without grace, the undersigned for value received hereby promises to pay to George Keister or order at his office * * * the sum of $3,100 00/100 with interest at the rate of 6% per annum, * * *.”
The note in suit is, therefore, an instrument in which no time for payment is expressed, and, being such, is, under the provisions of section 26 of the Negotiable Instruments Law, payable on demand and, therefore, a negotiable instrument within the statute. Moreover, the question of negotiability is not, I think, involved in this case. The note was, in fact, never negotiated, the action being brought by the payee against the maker. Aside from the fact whether it is negotiable or not, the note in suit is a contract between the parties for the payment' of money, and is signed by the defendant. The provisions of the Negotiable Instruments Law above referred to are but the codification of well-settled and long-established principles of common law. Where no specific time is mentioned when a note is to be paid, it is payable immediately upon demand. The common-law rule with reference to promissory notes of this character is well expressed
Had the words, “ after date, without grace,” been omitted from the note in suit, it would have read: “ the undersigned for value received hereby promises to pay to George Keister,” etc. Under those circumstances it could not be successfully contended that the note was not payable upon demand. The early case of Thompson v. Ketcham (8 Johns. 192) stated the common-law principle as follows: “ The time of payment is part of the contract, and if no time be expressed, the law adjudges that the money is payable immediately. This is not only a positive rule of the common law, but it is a general principle in the construction of contracts.” (See, also, Bradford, E. & C. R. R. Co. v. N. Y., L. E. & W. R. R. Co., 123 N. Y. 316.)
There can be no question but that under well-settled principles of common law the instrument in suit was a contract between the parties for the payment of the sum of money therein stated, upon demand, and as between the parties the note was a complete and enforcible contract.
The jury resolved the question as to consideration in favor of the plaintiff, and their verdict was not set aside by the court.
I think the judgment and order appealed from should be. reversed, with costs, and that the plaintiff should have judgment against the defendant upon the verdict of the jury in his favor, together with the costs of the action.
Dowling, Laughlin, Page and Greenbaum, JJ., concur.
Judgment and order reversed, with costs, and judgment ordered to be entered on the verdict in favor of plaintiff, with costs.