31 Conn. 268 | Conn. | 1863
This was a bill to foreclose a mortgage originally given to Holcomb & Birdsey, and assigned by them to the petitioners. The defense to it rested entirely upon the statute regulating the sale of spirituous liquors. It was claimed that the note secured by the mortgage was given, in part at least, for liquors sold to the respondent, and was therefore void, under the express provisions of the twenty-seventh section of that law. But the superior court did not find this fact. And we think there are no circumstances detailed in the finding from which it can fairly be inferred that it ought to have been found. In the dealings of the respondent with Holcomb & Birdsey, he had at different times received from them as a purchaser a considerable quantity of liquors, but the account against him for other articles which were lawfully sold, was larger than the amount of the note, and there was an unreseinded agreement between them, made before there were any payment on the account, that the payments which should be made should be applied to the liquor account, and consequently not to the other portion of it, until the liquors were paid for. Now it is true that this was an unlawful agreement, and therefore void as a contract, just as the purchase and payment for the liquors on delivery would have been. But it shows nevertheless the intention of the parties, at the time the payments were made, to apply them exclusively to the liquor account, and excludes the idea that there was any intention to pay any portion of the lawful account. If, during the running of this account, a cask of liquor had been bought by the respondent and paid for at the time, we presume it would not be claimed that the subsequent lawful account between them to the amount of the money so paid, would be extinguished by an application which the law would make, directly contrary to the intention of all parties ; and after the lawful account was settled by a note, surely no one would claim that such note was void, or that the money paid for the liquor ought to be applied in satisfaction of it. The party receiving money as the consideration of an illegal sale, may under the statute be liable to refund it. But to apply it by law as payment to other lawful debts is, in effect,
We are also of opinion that had the note been void, in consequence of its having been given for liquors, still, under the proviso to the twenty-seventh section of the act, it would, under the circumstances of this case, be a valid security in the hands of the petitioners, as bona-fide holders of the note, who have paid value for it. This of course depends upon whether it was past due at the time the petitioners took it. In the case of Bissell v. Gowdy, 31 Conn., 47, we held that if a negotiable note, given for liquor, was assigned for value after due, it was not protected in the hands of the assignee by this proviso.
We are clearly of opinion, however, that this note was not past due; and it is therefore valid in the petitioners’ hands, whatever might have been its condition in the hands of the payees. It was payable on demand, and such paper in this country has often been held to be payable in a reasonable time, so that, to subject an indorser, the demand upon the maker, and the notice of the non-payment, must be made and given in what has thus been termed a reasonable time. It has never been attempted however to fix this time with any degree of precision, except in reference to the circumstances of each particular case. But these circumstances only go to show the intention of the parties in respect to the time of payment, and, therefore, they amount only to evidence of their agreement in respect to it. The cases have probably gone too far to admit of any other time for the payment of such a note than such as the circumstances show to be reasonable, by showing the intention, expectation or understanding of the parties, and thus showing the agreed time. But we think we may well hesitate to follow the cases to the extravagant length of holding that a reasonable time is a question of law, depending on the particular circumstances of each case. If there is such a time, and it is a question of law, that is, if the time is fixed by law, it would seem that it ought to be known to the courts;
We are satisfied that there was no error in the disposition of this case, or in the judgment and decree complained of.
In this opinion the other judges concurred.