149 A. 234 | Conn. | 1930
The amended complaint alleged that the defendant Dowholonek executed a mortgage note dated November 21st, 1925, in the sum of $2600, payable to the defendants Walenty Blaszczyk and Gustawa Blaszczyk, or order, in installments as stated therein, with interest at six per cent "together with any and all lawful taxes which may be assessed on said principal sum"; that the defendants Blaszczyk on January 16th, 1926, indorsed and assigned the note to the plaintiff for value, and that it was due and unpaid. The complaint contained no allegation of presentment to the maker, but alleged that the plaintiff was unable by the exercise of due diligence to collect the note from the maker since the latter did not possess sufficient assets to satisfy the note. The defendants Blaszczyk demurred to the complaint upon two grounds, first, that there was no allegation of presentment of the note, and second, that it did not appear from the allegations of the complaint that plaintiff had exercised due diligence in attempting to collect the note from the maker. The court sustained the demurrer upon the first ground, and, the plaintiff having failed to plead over or to prosecute the action against the defendant Dowholonek, rendered judgment in favor of the defendants Blaszczyk.
With certain exceptions not here involved, presentment of a negotiable promissory note for payment is necessary in order to charge the indorsers. General Statutes, § 4428. The first ground of demurrer is based *67
upon the assumption that the note here involved is a negotiable instrument. Section 4359 of the General Statutes provides, among other essentials, that an instrument to be negotiable "must contain an unconditional promise or order to pay a sum certain in money." In Mechanics Bank v. Johnson,
While the language of this Act leaves much to be desired in the way of clarity, the intention fairly deducible from it would seem to be to provide that any mortgage note theretofore executed which possessed the characteristics of a negotiable instrument, except that it contained a provision for the payment of taxes, assessments and insurance, should be deemed to be a negotiable instrument. If this is the correct meaning to be ascribed to the Act, the result affected is to make the provisions of Chapter 240 of the Public Acts of 1927 retroactive in so far as they apply to notes secured by mortgage, thus making such notes, whether executed before or after such legislation, negotiable instruments although containing such provision for the payment of taxes. The Act is not subject to attack because it is retrospective in its operation. Such legislation is not of itself unlawful. Atwood v. Buckingham,
Chapter 146 of the Public Acts of 1927 alters the terms and conditions of a valid and enforceable contract so as to impose upon the parties obligations different from those assumed by them when the contract was executed. This it was clearly beyond the power of the legislature to do.
It is the contention of the defendants that, even if the note be held to be nonnegotiable and therefore no presentment was required, the demurrer was rightly *71
sustained because it does not appear from the complaint that due diligence was exercised by the plaintiff in an attempt to collect the note from the maker. The indorse of a nonnegotiable instrument warrants that it is collectible by the use of due diligence. Brown v.Wilcox,
There is error, the judgment is set aside and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.