§ 24 (b) Exceptions: (3) Waiving exemptions. ZIMMERMAN v. ANDERSON. 67 PENNSYLVANIA STATE, 421. - 1871. In an action on a note the court charged that "the note offered in evidence not being negotiable has been rejected, and consequently there is no evidence to sustain the action, and you will find for defendant." Judgment for defendant and plaintiff appeals. READ, J. - The paper in this case comes within all the definitions of the best text-writers of a promissory note, for it is a written promise by the defendant to pay E. W. Lowe or order one hundred and twenty-five dollars, six months after date, for value received with interest, absolutely and at all events. But it is urged that the words “waiving the right of appeal, and of all valuation, appraisements, stay and exemption laws," destroy its negotiability. In what way? They do not contain any condition or contingency, but after the note falls due and is unpaid, and the maker is sued, facilitate the collection by waiving certain rights which he might exercise to delay or impede it. Instead of clogging its negotiability it adds to it, and gives additional value to the note. Judgment reversed and new trial ordered. (b) Exceptions: (4) Election to require something in lieu of money. THE action was against the defendants as indorsers of the following instrument or note: No. 253. RUTLAND AND BURLINGTON RAILROAD COMPANY. $1,000. BOSTON, April 1, 1850. In four years from date, for value received, the Rutland and Burlington Railroad Company promises to pay in Boston, to Messrs. W. S. & D. W. Shuler, or order, $1,000, with interest thereon, payable semi-annually, as per interest warrants hereto attached, as the same shall become due; or upon the surrender of this note, together with the interest warrants, not due, to the treasurer, at any time until six months of its maturity, he shall issue to the holder thereof ten shares in the capital stock in said company in exchange therefor, in which case interest shall be paid to the date to which a dividend of profits shall have been previously declared, the holder not being entitled to both interest and accruing profits during the same period. T. FOLLETT, President. The court decided that the plaintiff was entitled to recover against the defendants, and gave judgment accordingly. WRIGHT, J. The single question is, whether the defendants can be held as indorsers. It is insisted that they cannot, for the reasons: 1st. That the instrument set out in the complaint, is neither in terms nor legal effect a negotiable promissory note, but a mere agreement; the indorsement in blank of the defendants, operating, if at all, only as a mere transfer, and not as an engagemnet to fulfill the contract of the railroad company in case of its default; and 2nd. That if it be a note, the notice of its dishonor was insufficient to charge the defendants as indorsers. * The instrument on which the action was brought has all the essential qualities of a negotiable promissory note. It is for the unconditional payment of a certain sum of money, at a specified time, to the payee's order. It is not an agreement in the alternative, to pay in money or railroad stock. It was not optional with the makers to pay in money or stock, and thus fulfill their promise in either of two specified ways; in such case, the promise would have been in the alternative. The possibility seems to have been contemplated that the owner of the note might, before its maturity, surrender it in exchange for stock, thus canceling it and its money promise; but that promise was nevertheless absolute and unconditional, and was as lasting as the note itself. In no event could the holder require money and stock. It was only upon a surrender of the note that he was to receive stock; and the money payment did not mature until six months after the holder's right to exchange the note for stock had expired. We are of the opinion that the instrument wants none of the essential requisites of a negotiable promissory note. It was an absolute and unconditional engagement to pay money on a day fixed; and although an election was given to the promisees, upon a surrender of the instrument six months before its maturity, to exchange it for stock, this did not alter its character, or make the promise in the alternative, in the sense in which that word is used respecting promises to pay. The engagement of the railroad company was to pay the sum of $1,000 in four years from date, and its promise could only be fulfilled by the payment of the money, at the day named. [Omitting the question of notice.] I am of the opinion that the action was well brought against the defendants as indorsers of a negotiable promissory note, and that the notice of its dishonor was sufficient. The judgment of the Supreme Court should be affirmed. All the judges agreed that the instrument in suit was a promissory pote; DENIO and WELLES, JJ., dissented on the ground that the notice of non-payment was insufficient in omitting the number upon the margin of the note." Judgment affirmed.* III. Payable on demand or at a determinable future time. ASSUMPSIT on a promissory note. The first count of the plaintiff's declaration stated, that the defendant, on May 25, 1809, at, etc., made his certain promissory note in writing, subscribed, etc., and then and there delivered the same to the plaintiff, by which said note the defendant promised to pay to the plaintiff, or order, $112.53; by reason whereof, etc. There was a demurrer to this count of the declaration, which was submitted to the court without argument. PER CURIAM. It is to be presumed that the plaintiff has stated the note in his declaration, according to the terms of it, and that is sufficient. The conclusion of the law is, that where no time of payment is specified in a note, it is payable immediately. The first count, then, shows a cause of action, and the plaintiff is entitled to judgment. Judgment for the plaintiff." 4" I promise to pay to the order of W. $55 at my store (or in goods on demand)," is a promissory note. Hosstatter v. Wilson, 36 Barb. (N. Y.) 307. Contra, Dennett v. Goodwin, 32 Me. 44. - H. 5" By the law merchant there are some distinctions between instruments payable on demand and those payable at sight; as, for example, in the matter of days of grace. See Daniel on Negotiable Instruments, §§ 617-619. [Demand bills or notes were not entitled to days of grace, but there was a conflict of authority as to instruments payable at sight, the weight of authority holding that they were so entitled. — C.] This was also the effect of former statutes in some of the states. Walsh v. Dart, 12 Wis. 635. The new statute abolishes all these distinctions." Crawford's Negotiable Instruments Law, 3d ed., p. 18. Days of grace are abolished by § 145 of the New York act. — C. • Accord: Bacon v. Page, 1 Conn. 404; Jones v. Brown, 11 Oh. St. 601; Messmore v. Morrison, 172 Pa. St. 300: Bank v. Price, 52 Iowa, 570; Libby v. Mikelborg, 28 Minn. 38; Roberts v. Snow, 27 Neb. 425.-H. (c) Issued, accepted or indorsed when overdue. ADAMS, JUDGE. But it is unnecessary to review any of the positions assumed by counsel in this case, as the petition on its face does not state facts sufficient to constitute a cause of action against the defendants as indorsers of this note. It is a negotiable note, indorsed after due. Such indorsement is equivalent to drawing a new bill at sight, and the same diligence in making demand and giving notice is required to charge the indorsers. (See Davis v. Francisco, 11 Mo. 572, opinion of SCOTT, J.; also Moody et al v. Mack, 43 Mo. 210; Berry v. Robinson, 9 Johns. 121; McKinney v. Crawford, 8 Serg. & R. 351; Rugby v. Davidson, 2 Mills Const. 33.7) The petition alleges that the indorsement was made about the 19th of April, and alleges a demand and refusal on the 3d of July following, and gives no excuse whatever for the delay. Even if this petition could be held good after verdict, there was nothing in the evidence to justify the delay in presenting the note for payment, and the indorsers were discharged by such delay. Judgment affirmed. The other judges concur. 2. WHEN PAYABLE AT A FIXED OR DETERMINABLE FUTURE TIME. (a) A fixed time after date or sight. $23 $23 SIEGEL v. CHICAGO, ETC., CO. [Reported herein at p. 190.] (b) on or before a fixed or determinable time specified. JORDAN v. TATE. 19 OHIO STATE, 586. — 1869. MOTION for leave to file a petition in error to reverse a judgment of the District Court of Montgomery county, affirming the judgment of the Court of Common Pleas. 7 "A negotiable instrument indorsed after maturity is regarded as equivalent to one payable on demand. Such a bill or note, though overdue, continues to be negotiable, and is in the nature of a new bill payable on demand. Daniel on Neg. Inst., §§ 611. 996; Beer v. Clifton, 98 Cal. 326, 33 Pac. 204." HART, J., in Wills v. Booth, 6 Cal. App. 197, 201. "As between indorser and indorsee, such note is to be treated as a note on demand, dated at the time of the transfer, so far as demand and notice are concerned." RICE, J., in Goodwin v. Davenport, 47 Me. 112. 116. — C. • Accord: Bassenhorst v. Wilby, 45 Ohio St. 333 (delay from July 30 to Nov. 21). See Neg. Inst. L., § 131. - H. BY THE COURT: The negotiable character of a promissory note is not affected by the fact that it is made payable by its terms on or before a future day therein named. Though the maker has a right to pay such note at any time after its date, yet for all purposes of negotiation it is to be regarded as a note payable solely on the day therein named. Motion overruled." § 23 RIKER v. SPRAGUE MFG. CO. [Reported herein at p. 68.] § 23 FIRST NATIONAL BANK OF POMEROY, IOWA, v. BUTTERY. 17 NORTH DAKOTA, 326. - 1908. Judgment for defendant, and plaintiff appeals. SPALDING. This is an action on a promissory note. The note was sued on by the indorsee for value before maturity, and the court found that there was a failure of consideration, and that the contract was not a negotiable note, and entered judgment for the dismissal of the action. Only one question requires consideration. If the instrument in question is a negotiable promissory note, the judgment should be reversed; otherwise, it should be affirmed. The note was made in this state, and is payable at Sioux City, Iowa, and the clause which the trial court held rendered it non-negotiable reads: "The makers and indorsers herein, severally waive presentment of payment and notice of protest, and consent that the time of payment may be extended without notice." There is an apparent conflict of authorities as to whether this or similar agreements render the note non-negotiable. The note is, by its terms, made payable on or before the 1st of October, 1903. Without the paragraph complained of, it would unquestionably be a negotiable instrument, and the indorsers would be released by any extension of time of payment without their assent. We are of the opinion that this provision does not extend the time of payment indefinitely or render it uncertain. The time of payment is already fixed. It is strenuously argued that the use of the word "makers" in the waiver admits of an extension being made at any time on the part of the holder, by a mere secret mental process, unknown to any other • Accord: Mattison v. Marks, 31 Mich. 421. Contra: Stults v. Silva, 119 Mass. 137. H. [Accord: Leader v. Plante, 95 Me. 339. — C.] |