170 Mass. 356 | Mass. | 1898
The note in suit was payable in New York, and was made and delivered there. The rights and liabilities of the parties are, therefore, to be determined by the laws of New York. Lawrence v. Bassett, 5 Allen, 140. Woodruff v. Hill, 116 Mass. 310. Jewell v. Wright, 30 N. Y. 259.
By the law of New York, one who puts his name on the back of a note before delivery, as the defendant in this case .did, is a mere indorser, and not a joint maker or guarantor. Like that of any other indorser, his liability does not become absolute until after a proper demand and notice. Hall v. Newcomb, 7 Hill, 416. Meyer v. Hibsher, 47 N. Y. 265. Phelps v. Vischer, 50 N. Y. 69.
In the present case a demand was made and notice was given on or about July 31, 1893, more than a year and a half after the date of the note, which by its terms was payable on demand. The question is whether this was within a reasonable time, so that the indorser was charged thereby. To show the law of New York bearing upon this question, certain statutes, together with thirty-five decisions of courts in that State, were put in evidence. The law of another State is a fact to be proved, like any other fact, by evidence. Where the evidence is a single statute or a decision of a court, the language of which is not in dispute, the interpretation of it presents a question of law for the court; but where the law is to be determined by considering numerous decisions which may be more or less conflicting, or which bear upon the subject only collaterally, or by way of analogy, and where inferences must be drawn from them, the question to be determined is one of fact, and not of law. Hackett v. Potter, 135 Mass. 349. Shoe & Leather National Bank v. Wood, 142 Mass. 563. Ufford v. Spaulding, 156 Mass. 65. Bride v. Clark, 161 Mass. 130.
In the present case it is not contended on either side that any statute or decision introduced in evidence relates to a contract
The plaintiff relies principally upon Merritt v. Todd, 23 N. Y. 28, the head-note of which is as follows: “ A promissory note, payable on demand, with interest, is a continuing security; an indorser remains liable until an actual demand; and the holder is not chargeable with neglect for omitting to make such demand within any particular time.” So far as appears, this case has never been overruled, but it has been, at different times, reaffirmed. Pardee v. Fish, 60 N. Y. 265. Parker v. Stroud, 98 N. Y. 379. On the other hand, the courts have been disinclined to extend it. In Herrick v. Woolverton, 41 N. Y. 581, Foster, J., speaking for the court, says: “ I think the case of Merritt v. Todd has extended the principle of continuing security in such a case to the very verge.” See also Crim v. Starkweather, 88 N. Y. 339.
In the opinion in Merritt v. Todd much stress was laid upon the fact that the note, although payable on demand, expressly provided for payment of interest. The court said: “ If the security be not on interest, it may be a fair exposition of the contract to hold that no time of credit is contemplated by the indorser, and that the demand should be made as quickly as the law will require upon a check or sight draft.” This distinction between demand notes bearing interest and those not bearing interest was made in Wethey v. Andrews, 3 Hill, (N. Y.) 582, and recognized in Salmon v. Grosvenor, 66 Barb. 160, and in later cases.
If the rule applicable to an ordinary indorser of a demand note, payable without interest, is to be applied, we are of opinion that the demand made fourteen months after the last advancement of the consideration was not within a reasonable time.
Exceptions overruled.