10 Colo. App. 544 | Colo. Ct. App. | 1898
delivered the opinion of the court.
This was an action on promissory notes by the assignee against the maker, Harriet E. Westcott. The complaint was
It is claimed by defendant that the notes not designating any place for payment, the place would be the residence of the maker, and that it was the duty of the holder of the notes to demand payment at such place at the time of the maturity of the notes; otherwise, he would not be entitled to recover interest thereon. It is elementary that as against the maker of a note, it is not necessary to make any formal presentment or demand for payment. This is universally conceded where the note is by its terms, as in the case at bar, payable at a time fixed and not on demand or on the happening of any contingency. The suit itself is a sufficient demand, as in other cases of a precedent debt or duty. Daniels, Neg. Ins. § 571; Tiedeman, Com. Paper, § 310 ; Edwards, Bills, Notes, etc., § 663; Randolph, Com. Paper, § 1070. Presentation for payment is only required where it is sought to hold indorsers and others, who may be secondarily liable. Only in such case, in the absence of a designation of a place of pay
The ordinary rule as between debtor and creditor is, that where no place of payment is specified in a note for the direct payment of money, the former must seek the latter in order to tender or make payment. Stoker v. Cogswell, 25 How. Pr. 274; Goodwin v. Holbrook, 4 Wend. 377; Smith v. Smith, 2 Hill, 351.
If the maker of a note desires to fully protect himself against accrual of interest after maturity, he can specify in the note a place for its payment. Then under proper circumstances, a tender of payment at this designated place at maturity might entitle him to plead this in bar of recovery of interest accruing thereafter, and of costs of suit. In order however to render this plea effective, when permissible, it would be necessary that it be accompanied by the tender and actual payment into court, subject to the plaintiff’s disposal, of the money admitted to be due. Mulherrin v. Hannum, 2 Yerg. 81; Caldwell v. Cassidy, 8 Cowen, 272; Hills v. Place, 48 N. Y. 521. If the profert of the money in court is omitted, the plea would be bad. Bacon v. Dyer, 12 Me. 23. Defendant in this case made no payment nor even tender of the money into court, and hence even if this had been a case, in which the plea attempted to be made was allowable, it would not have been good.
The notes of defendant specifically provided that they
Prior to the motion for judgment on the pleadings, it appears that C. M. Henderson & Co., who are also appellants herein, filed a petition in intervention in which they recited among other things, that they were judgment creditors of Robert Patton, the payee in the notes; that he was insolvent; that the transfer and assignment of the notes by him to plaintiff Avas Avithout consideration, and made for the sole purpose of hindering, delaying and defrauding his creditors. The petitioners prayed that they be permitted to intervene and ' be made parties to the action; that Robert Patton be also brought in as a defendant; and that defendant Westcott be required to pay into court whatever sum should be found due and payable on the promissory notes sued upon; that the transfer of the notes by Robert Patton be declared and adjudged fraudulent as against the intervenor; that the proceeds of the notes be adjudged to be the property of said Robert Patton ; and that so much of said proceeds as might be necessary be applied to the payment of the judgment held by petitioners against said Robert Patton. It does not appear that the petitioners had permission to intervene, but it is urged that the petition being on file, the court could not properly render judgment on the pleadings without first dis-' •posing of it. The rendition of judgment amounted to a denial of the petition to intervene. This court will consider the matter as if such denial had been expressly made in terms. The question then is: Could the petitioner make such a showing as entitled him to intervene ? Did the court err in •refusing to entertain his petition? Both questions must in our opinion be answered in the negative. Code section 22 provides that, “ Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in
The judgment is affirmed, and it will be so ordered.
Affirmed.