183 P. 12 | Or. | 1919
“Where the instrument is not payable on demand,' presentment must be made on the day it falls due”: 8 C. J. 533, 534, 548, 549.
However, it is argued that even though it is held that the bank had possession of the note with authority to surrender it upon payment being made, nevertheless no presentment for payment was made. This argument is based upon the language of Section 5905, L. O. L., where it is said:
“Presentment for payment, to be sufficient, must be made * * to the person primarily liable on the instrument, or, if he is absent or inaccessible, to any person found at the place where the presentment is made.”
“An instrument is payable at a determinable future time, within the meaning of this act, which is expressed to be payable (1) at a fixed period after date or sight; or, (2) on or before a fixed or determinable future time specified therein; or, (3) on or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain.*592 An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect.”
The three sections of our Code to which attention has been directed correspond with Sections 184,1 and 4 of the uniform negotiable instruments law which has been adopted by all the states of the Union except Georgia and Texas: Utah State Nat. Bank v. Smith (Cal.), 179 Pac. 160, 161. The chief object of the uniform negotiable instruments law was, as its name implies, to accomplish uniformity, so that a citizen of one state could know the law of every state by acquiring a knowledge of the law of his own státe. Although in some of the states slight differences in phraseology may occasionally be observed, or sometimes, but rarely, omissions may be noted, or a small number of material changes might be specified, yet for the most part not only the subject matter but also the phraseology and the sections of the original draft are exactly the same in the states which have adopted the'uniform negotiable instruments law. In the main, the uniform negotiable instruments law is only a legislative declaration of the rules of the law-merchant; and, indeed, the concluding section of the statute provides that:
“In any case not provided for in this act the rules of the law merchant shall govern”: Section 6025, L. O. L.
While most of the rules of the law-merchant were thoroughly established and were the same in all American jurisdictions, still the subject of negotiable instruments presented many phases upon which appellate courts differed; and generally, but not always, the uniform negotiable instruments law solved these differences by adopting whatever rule was supported by the weight of authority; and hence it is accurate to say
The provisions of the negotiable instruments law (Sections 6017, 5834 and 5837, L. O. L.) are only declaratory of the law-merchant as it existed in most jurisdictions ; and, hence judicial opinions expressed before the enactment of the statute are not without weight in the solution of the problem confronting us: Rossville State Bank v. Heslet, 84 Kan. 315 (113 Pac. 1052, 33 L. R. A. (N. S.) 738); 3 R. C. L. 907; 8 C. J. 135; Eaton & Gilbert on Com. Paper, 213. If the words “due if ranch is sold or mortgaged” are omitted from the instrument it concededly becomes a negotiable promissory note within the meaning of Section 6017, L. O. L., because it contains a promise to pay “five years from date,” which
It. is apparent from what has already been said that some jurisdictions go further than others in their approval of acceleration clauses; and consequently a rule containing language as broad as the rule in some jurisdictions would be too broad for others, and a formula which is only broad enough for the latter would not be broad enough for the former.
“The principle to be deduced from the authorities is this: To constitute a negotiable promissory note, the time, or the event, for its ultimate payment, must be fixed and certain; yet it may be made subject to contingencies, upon the happening' of which,-prior to the time of its absolute payment, it shall become due. The contingency depends upon some act done or omitted to be done by the maker, or upon the occurrence of some event indicated in the note; and not upon any act of the payee or holder, whereby the note may become due at an earlier day. ’ ’
The principle which was expressed in Ernst v. Steckman was subsequently reiterated and applied by the supreme court of the United States in the leading and oft-cited case of Chicago Ry. Co. v. Merchants’ Bank, 136 U. S. 268 (34 L. Ed. 349, 10 Sup. Ct. Rep. 999, see, also, Rose’s U. S. Notes). Further exemplification of this principle may be found in the fol
There is a divergence of judicial opinion as to whether or not the implications and intendments which the law attaches to a blank indorsement of negotiable commercial paper maké such blank indorsement the equivalent of a complete written contract which cannot be varied by parol evidence: 8 Cyc. 264; 3 R. C. L. 974; 8 C. J. 1033; Crawford’s Ann. Neg. Inst. Law (Rev. Uniform ed.), 133. In this jurisdiction, however, it has been the settled rule for nearly forty years that parol evidence cannot be received to vary or contradict the contract which the law writes over a blank indorsement when made after the delivery of a promissory note to the payee: Smith v. Caro, 9 Or. 278; Carroll v. Nodine, 41 Or. 412, 415 (69 Pac. 51, 93 Am. St. Rep. 743); Smith v. Bayer, 46 Or. 143, 147 (79 Pac. 497,114 Am. St. Rep. 858). To this general rule there are certain exceptions which are specified in Dale
“Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times: (1) if sent by mail, it must be deposited in the postoffice in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail thereafter; * * ”: Section 5937, L. O. L.
The negotiable instruments law prescribes a definite time for mailing notice of dishonor. If there was only one mail on August 10th and if that mail left at ,a convenient hour prior to 3:30 p. m., the notice mailed by the appellant was too late. If there was no outgoing mail at all for Brownsboro on that day, then, of course, the letter was deposited in timé. The liability of an indorser of a negotiable promissory note is contingent and, among other things, the liability is conditioned upon giving notice of dishonor within the time specified by the statute. The burden is upon the holder to prove that the notice was mailed within the time prescribed by law; it is not enough merely to show that the notice was deposited in the postoffice on the day following the day of dishonor, but it must also be shown that the notice was deposited “in time to go by mail the day following the day of dishonor,” if there was a mail at a convenient hour on that day. Strict proof is required. There is an utter want of evidence concerning out-going mails and consequently the judgment of .involuntary nonsuit was properly rendered: United States v. Barker, 24 Fed. Cas. No. 14,519; First Nat. Bank v. Miller, 139 Wis. 126 (120
The judgment is affirmed. Affirmed.