29 N.Y.S. 350 | N.Y. Sup. Ct. | 1894
The sole question here is whether the note in suit was barred by the statute of limitations. The note is in the following form:
“8600. Hillsdale, April 2, 1880.
“On demand, after three months’ notice, for value received, we, or either of us, promise to pay to the order of Tammie S. Spencer the sum of six hundred dollars, with interest from date. And I, Esther E. Greene, do hereby charge my sole and separate estate with the payment thereof.
“Esther E. Greene.
“John E. McAlpine.”
This note was given for $600, which John E. McAlpine borrowed from the plaintiff upon the day it bears date. The defendant signed the note to enable him to borrow the money. Nothing further occurred between the parties until the 24th of September, 1891, when the following notice was served upon the defendant:
“Dated September 24th, 1891.
“To Mrs. Esther E. Greene: You will please take notice that, three months after the service of this notice upon you, you will be required to pay the amount due for principal and interest on the promissory note to my order, and held by me, and made by you and John E. McAlpine. Sarah T. Knapp.”
Upon this state of facts, the learned judge at circuit held that the statute of limitations had run against the note, and the plaintiff’s complaint was accordingly dismissed. We think this disposition of the case was correct. The defendant’s liability, as dis
Let us see where the opposite construction of the instrument would lead. The plaintiff contends that the note should be construed as though it read “three months after demand,” and as though the demand and notice were conditions precedent to the existence of a cause of action. If that be so, then the holder of the note could postpone his right of action indefinitely, while the maker could never stop the running of interest or compel the acceptance of payment. As was said in Palmer v. Palmer, 36 Mich. 490: “If there was any infirmity in the consideration, or any defect in the binding character of the obligation, he might retain it until all testimony was lost, and defeat the defense. This is the "mischief which the statute of limitations was intended to remedy.” In this case of Palmer v. Palmer it was held that, if “a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim, by failing to present it.” “He is really and in fact able,” said the learned judge who delivered the opinion of the court, “at any time to bring an action when he can by his own act fix the time of payment. It is no stretch of language to hold that a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor, by his own act, and in spite of the debtor, can make the demand payable.” Substantially the same view was taken in Morrison’s Adm’r v. Mullin, 34 Pa. St. 12; Rhines v. Evans, 66 Pa. St. 194; Bank v. Greene, 64 Iowa, 445, 17 N. W. 86, and 20 N. W. 754; Lower v. Miller, 66 Iowa, 408, 23 N. W. 897; Prescott v. Gonser, 34 Iowa, 175. The illustrations fur
PARKER, J., concurs. VAR BRURT, P. J., concurs in result.