92 N.Y.S. 891 | 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, 22 N. E. 362:
“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, it would constitute 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 the money to be used for other purposes, and did not intend to take it in discharge of the note, worked no estoppel upon him to subsequently change his mind and de mand payment of it. Consequently the tender had no effect upon the note, and it remained a subsisting obligation.
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 offset 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 Brown’s House of Lords Rep. 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”
“The holder may expressly renounce his rights against any party to the instrument before, at or after its maturity. An absolute and unconditional renunciation of his rights'against the principal debtor made at or after the maturity of the instrument, discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing unless the instrument is delivered up to the person primarily liable thereon.”
This statute was taken from an act passed by the British Parliament in 1882, known as the “Bills of Exchange Act.” 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. In re 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. Erancis. Search was made for the same, that it might be destroyed, but it could not be found. At the instance of the decedent, the nurse in attendance upon him wrote at his dictation: “30th August, 1889. It , is by Mr. George’s dying wish that the cheque [sic] for ¿2,000 money lent to Mrs. Francis be destroyed as soon as found.” The nurse added to this declaration the words: "Mr. George is perfectly conscious and in his sound mind. [Signed] Nurse T.” This transaction took place two or three hours before death. The testator therein left a will, in
There is some obscurity in the provisions of our statute. In its first 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 second 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, and discharges the instrument. The first relates to the party; the second, 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 express 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 canceled in case of my death.” There is nothing in these words which can be construed as expressing a renunciation of any rights either against the party or upon the instrument. Had it been delivered to the defendant during the lifetime of the testator, it would not have precluded the latter at any time upon maturity from enforcing the note. There is nothing indicating an intent upon his part not to enforce it during his lifetime. There was no delivery of it to anybody, and while, doubtless, it was sufficiently authenticated to accomplish a renunciation, it had no operative effect whatever, as it did not fall within the statute or comply with its terms.
In principle, the question raised by this case has been decided by ibis court. Dimon v. Keery, 54 App. Div. 318, 66 N. Y. Supp. 817. 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, as the indorsement was a
The judgment enforcing it should therefore be affirmed, with costs. All concur.