141 S.E. 394 | W. Va. | 1928
Plaintiff Morrison sued defendants, L. N. Frantz, John S. Farr and J. R. Lilly, on a promissory negotiable note by notice of motion for judgment to be made in court on May 27, 1927. The note is as follows:
"Huntington, W. Va., April 14, 1919.
On demand, after date for value received I promise to pay to the order of J. A. Morrison Five thousand Dollars, negotiable and payable at the American Bank Trust Company of Huntington, W. Va. The makers and endorsers of this note hereby waive presentment, protest and notices of dishonor.
(Signed) L. N. FRANTZ."
On the back of the note are the words "endorsed, J. R. Lilly, John S. Farr", followed by notations of payment of interest as follows: "Int. paid to April 14, 1920, $300.00; Int. paid to April 14, 1921, $300.00; Int. paid to April 14, 1922; Int. paid to April 14, 1923."
L. N. Frantz made no defense to the suit. Lilly and Farr appeared, pleaded the general issue, and tendered two special pleas. Plea No. 1 was allowed to be filed on which issue was joined, but plea No. 2 was rejected. The ruling of the court in rejecting plea No. 2 on demurrer of plaintiff thereto was certified to this court for review, upon the joint application of the parties. The notice of motion copied the above note and *16 alleged that the waiver of protest, presentment, and notices of protest on the face of the note was a part of the contract agreed to by the maker and endorsers and therefore it was not necessary for plaintiff to present the note for payment, nor to protest same, nor to give notices of dishonor in order to bind the endorsers. Plea No. 2 set up the fact that no demand for payment was made within a reasonable time after the execution of the note either upon the maker or endorsers, for the eight years (the time between the date of note and time when suit was begun), was not a "reasonable time" in which payment should be demanded. Plaintiff contended that presentment for payment is the same as demand for payment, and that defendants had waived presentment for payment and no demand for payment was necessary within the period of limitation on the right to maintain suit. Thus the controlling question on the correctness of the trial court's ruling, was clearly presented.
In England it seems to be the rule that a demand note is a continuing security and it is not necessary to present it for payment on the next day, but as a general rule in the States, presentment for payment must be speedily made in order to hold the endorsers. Daniel Neg. Insts. 6th ed. sec. 606. However, our statute (chap. 98-A, sec. 71, Code) provides that if the instrument is payable on demand, presentment must be made within a reasonable time after it is due, and it is very generally held that what is a "reasonable time" depends upon the nature of the instrument, the usage of trade with respect to such instrument, and the facts of the particular case. Uniform Laws Anno. Vol. 5, p. 529, sec. 193, and sec. 71.Davis National Bank v. Kight,
There was no error in the action of the court in sustaining the demurrer to defendants' plea No. 2, and we so answer the question certified.
Ruling affirmed.