2 S.C. 248 | S.C. | 1871
The opinion of the Court was delivered by
It is not questioned that the instruments sued on are at this day, by“ the usage of trade and commerce,” recognized as bonds, though payable to bearer, and.intended to pass from hand to hand, with the same facility as promissory notes, transferrable by delivery. Though at common law they would want the characteristics which are indispensable to bonds, still the Courts, in more recent times, probably influenced by the consideration of their extensive issue and circulation, affecting in no small degree the course of trade; a lid the monetary transactions of the country, have conceded to them the negotiable qualities impressed upon their face. Nearly every English and American Court has recognized them as bonds, although passing by mere “manual delivery,” and the Supreme Court of the United States, in the case of Mercer County vs. Hacket, 1 Wallace, 95, not only accepted, but enforcedsuch construction.
It is submitted by the defendant that there is no contract, express
If it were clear, in point of fact, that the bonds were not payable on a specified day, but were payable on demand, at the pleasure of the holder, then the liability for interest before such demand could not arise through the force of the contract, nor would any damages for the detention of the debt be allowed, because the condition on which the payment was to be made had not been performed.
The case of Sanderson vs. Bowes, 14 East, 508, so much relied on in the argument, goes to no further extent. There the note was payable on demand at a particular place, and no default of payment, on the part of the maker, could properly be averred, until there was a compliance by the holder with the precedent condition on which the right to exact payment depended.
. It cannot be said that the time of payment was not fixed in the bonds here sued on. The promise, by the defendant, in two of them, was to pay on the 1st of April, 1863,. and in the third, on the 1st of October, 1868, with interest from their respective dates, “ quarterly, on the 1st day of January, April, July and October in each year, on presenting the proper coupons at the South-western Railroad Bank, in Charleston, where the principal, also, will be redeemed on the surrender of this certificate ” — the coupons attached running to the respective periods fixed for the redemption of the principal. The promise was to pay at a prescribed time. The presentment at the place named was not an essential part of the contract. The value of the bond consisted in the obligation it imposed on the defendant to pay the money when, by its terms, the money became due. The surrender of the certificate imposed no duty on the plaintiff to which he would not have been subjected without its recital in the bond, for the debtor, on the payment of his note or other instrument to the creditor, could rightfully demand that the Avritten evidence of his debt, on its satisfaction, should be “ surrendered.” i
If the bonds are to be considered, as the defendants contend, only payable on demand at a particular place, a non-compliance with this precedent condition Avould not preclude the plaintiff from interest, after- maturity, until such demand at the designated place,
The bonds are to be held as payable on a specified day, and whether interest is to follow their non-payment from the time they fell due, as a part of the contract, by the recognized rule appertaining to the breach of a written promise to pay a named sum at a fixed period, or as compensation, in the way of damages, for the detention of the debt, the principle has been too long established to be the subject of doubt at this day. — Ryan vs. Baldrick, 3 McC., 498; Wister, Siter & Price vs. Robinson, 2 Bail., 274.
It is now proper to consider whether, before a recovery can be had of the prineipal, and the interest on these bonds from maturity, (regarding them as payable at a fixed time,) it was necessary for the holder to aver and prove a demand on the defendant at the South-western Railroad Bank ?
The difference which for so long a period prevailed between the King’s Bench and the Common Pleas on this question has never affected the American Courts. They have been almost of one mind in holding that “ in actions on promissory notes against the maker, or on bills of exchange, where the suit is against the maker in the one case, and the acceptor in the other, and the note or bill is made payable at a specified time and place, it is not necessary to aver in the declaration, or prove on the trial, that a demand of payment was made, in order to maintain the action. But if the maker or acceptor was at the place at the'time designated, and was ready and offered to pay the money, it was matter of defense, to be pleaded and proved on his part. This, if the place of payment is a bank, and the money be there deposited to meet the note or bill, will exonerate him from'all costs and damages ; and, if such place be other than a bank, an offer to pay the money at the time and place would protect him from interest and costs on bringing the money into Court.” — Wallace vs. McConnell, 13 Pet., 136; Story on Bills, Sec. 288, and note.
In this State the same principle was held in Smith vs. Burrell, manuscript, Charleston, Nov. Term, 1827, and in Clarke vs. Gordon, 3 Rich., 313.
The plaintiff claimed, in the Circuit Court, his right to interest on the bonds from the time they severally became due, at the rate of seven per cent, per annum,. We hold that he is so entitled.
Decisions in the Courts of some of the States may be found maintaining a different rule, but. the weight of authority is against them.
In this State', in the case of Gillard, Ex’r., ads. Ball, 1 Nott & McCord, 69, it was held, “that where a person entered into a bond, conditioned for the payment of four per cent, interest on legacies till the legatees come of age, and, as each legatee comes of age, to pay him his proportion of the principal, the legatees are entitled to seven per cent, interest (i. e., the legal interest of the State,) from the time the bond becomes due.”
In Brewster vs. Wakefield, 22 How., 118, in which the opinion was delivered by Chief Justice Taney, the Court held, as to the mode of computing interest where the note did not, by the contract, carry the interest expressed until its full satisfaction, that, when it fell due, the statute must interpose and regulate it. .
Our judgment in reference to the interest due and payable on the bonds is to be held applicable to the two coupons embraced in the action.
It is ordered and adjudged that the case be remanded to the Circuit Court for Charleston County for a new trial.
