102 A.D. 529 | N.Y. App. Div. | 1905
The plea of tender is unavailing, as it was not made to appear that any money was produced at the time when the tender was claimed to have been made, or that any formal requisites were observed sufficient to make a valid tender. It was said in Eddy v. Davis (116 N. Y. 247): “ A tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. The formal requisite of a tender may be waived, but to establish a waiver there must be an existing capacity to perform.” The only thing disclosed by the evidence is- that the testator did not intend to take the money, and it may be that from such situation, if it had been made to appear that the maker of the note had the ability to perform, there could be inferred a waiver of the formal requisites, but there is no evidence to show that he either had the money at the time of the tender ready to pay or that he had the means of producing it at the time. The tender of payment did not discharge the debt and the mere expression by the testator that he desired
So far as the plea of the discharge of the note, by way of counterclaim to the defendant’s claim made against the estate of the testator is concerned, it is sufficient to say , that it was not used as a counterclaim in that proceeding, but simply as evidence in rebuttal" of the defendant’s claim. As such it was competent for the purpose of showing an indebtedness of the defendant to the testator which might, dependent upon circumstances, tend to rebut the inference that there was a large indebtedness in favor of the defendant against the testator, as the former’s liability upon the promissory note might be entirely inconsistent with the existence of a large claim in his favor against the testator. But whether it had great or little probative force is not of consequence, as it appears not to have been used as an offsét or counterclaim to the defendant’s demand, and, consequently, it was not discharged by any judgment or determination had in that proceeding.
This brings us to the main question in the case, the construction of the written declaration of the testator, which was found in the envelope which contained the note after his death. It is probably true that this declaration was sufficient to discharge defendant’s obligation upon the promissory note within the authority of Wekett v. Raby (2 Bro. P. C. [2d ed.] 386). The declaration therein was made a few days before the death of the testator in these words : “ I have Baby’s bond which I keep ; I don’t deliver it up, for I may live to want it more than he ; but when I die he shall have it, he shall not be asked or troubled for it.” Suit having been brought upon the bond it was ordered to be delivered up and canceled, and such decision was affirmed by the High Court of Parliament upon appeal. The declaration in.the present case is in one view stronger than the declaration, in that case, for therein there was the express intention of the testa or to keep the bond as a subsisting obligation against Baby and it was not to be enforced save in the event of his death, when the declaration was to take effect. In the writing under consideration in this case there is no such expression in terms.
This statute was taken from an act passed by the British Parliament in 1882, known as the Bills of Exchange Act (45 & 46 Viet. chap. 61, § 62). It has been quite generally adopted in various States of the American Union. Its provisions are as follows:
“ (1) When the holder of a bill at or after its maturity absolutely and unconditionally renounces his rights against the acceptor, the bill is discharged.
“ The renunciation must be in writing, unless the bill is delivered up to the acceptor.
“ (2) The liabilities of any party to a bill may in like manner be renounced by the holder before, at, or after its maturity; but nothing in this section shall affect the rights of a holder in due course without notice of the renunciation.”
It is readily seen that these two statutes in character and import are alike. The only difference is change in the form of phraseology, but it affects neither the sense nor the construction. A single case has arisen in England under the provisions of this statute (Matter of George, L. R. 44 Ch. Div. 627, decided in 1890). Therein it appeared that the testator desired to have destroyed a note for £2,000, given by Mrs. Francis. Search was made for the same
There is some obscurity in the provisions of our statute. In its 1st sentence it provides for the renunciation of the rights of the holder against any party to the instrument which may be made before, at or after its maturity. In the 2d sentence it provides for an absolute and unconditional renunciation of the rights of the holder against the principal debtor at or after the maturity of the instrument, which discharges the instrument. The 1st relates to the party; the 2d to the instrument. It is somewhat difficult to see how there could be an absolute discharge of a party to an instrument without discharging the instrument as an obligation so far as he is-concerned. We do not clearly perceive why this distinction should have been made. It is immaterial, however, to the rights of the parties to the present action. The instrument of renunciation contains no ex-press declaration of the testator to renounce his rights in the note against the party, or of his right to enforce it as a subsisting obligation. The expression is: “I wish (the note) to be
In principle, the question raised by this case has been decided by this court. (Dimon v. Keery, 54 App. Div. 318.) Therein the plaintiff’s intestate loaned to the defendant a sum of money, taking her promissory note in writing, wherein she agreed to pay the same, with interest, on demand. At the time the note was delivered the testator indorsed thereon the words: “ At my death the above note becomes null and void. Stephen C. Dimon.” Dimon continued to retain possession of the note and the defendant paid interest thereon, but no principal. Dimon died about three years after the execution and delivery of the note. In an action to enforce the same by his administrator the defendant was held liable thereon, ak the indorsement was a mere declaration by the payee of the note as to his intention concerning it, but that it was insufficient as constituting either a gift of money or an agreement to discharge it as an obligation. The court therein did not discuss the statute which is here the subject of consideration. It is manifest, however, that the declaration indorsed upon the note was not a renunciation of the' liability of the maker during the lifetime of the deceased, or of any renunciation of the obligation of the instrument, and as it did not constitute a gift or an agreement, it neither fell within the terms of the statute nor exempted the defendant for either reason from liability thereon. In the instrument relied upon in this case, so far as the direction for cancellation in the event of death and a command to his heirs to obey his wish and follow his orders, the language is no stronger than the indorsement upon the back of the note in the Dimon case. Nor is it as strong, because the language there used was a declaration that the note at death “ becomes null and void.” Here there is simply the expression of a wish to
The judgment enforcing it should, therefore, be affirmed, with costs.
Van Brunt, P. J., O’Brien, Ingraham and Laughlin, J J., concurred.
Judgment affirmed, with costs.