Majority
p. 582Wethey vs. Andrews and another.
Headnote
Where a note payable to bearer on demand, with interest, was shown to have been transferred to the plaintiff some four or jive weeks after its date; held, that it was not to be deemed dishonored at the time of the transfer, so as to let in a defence on the ground of want of consideration.Otherwise, had the note not been on interest; in which case the presumption of dishonor would have attached in a much shorter period. Per Cowen, J.
Semble, that if the note be on interest, the presumption of dishonor will not arise until after the lapse of some of the usual periods for computing interest—e. g. three months, a half year &e. Per Cowen, J.
Assumpsit, tried at the Cayuga circuit on the 12th of October, 1841, before Moseley, C. Judge. The action was on a promissory note for $130 and interest, made by the defendants, and payable to David D. Waite or bearer, on demand. One Grimshaw testified at the trial that he purchased the note of the payee, within a week after its date; that he kept it two, three or four weeks, when the plaintiff’s brother paid him the money on the note, and witness let him have it. The defendants, the payee and the plaintiff’s brother, all lived in the same village, and the plaintiff lived within two miles and a half of them. The defence relied on was, that the note had been given without consideration ; and the. defendants offered evidence to prove that fact. This was objected to, and the objection sustained. A verdict was rendered in favor of the plaintiff for the amount of the note, and the defendants now moved for a new trial on a case.
G. Rathbun, for the defendants.
M. S. Myers, for the plaintiff.
The cases furnish no principle for fixing the time with exactness, when a negotiable note payable on demand shall be deemed dishonored so as to let in a defence
p. 583
against one to whom it has been negotiated. Here is a note payable to bearer on demand, with interest; and it came to the plaintiff’s hands, as we must intend, some four or five weeks after it issued, for it is not shown that he took it after that time. Ho case goes the length of saying that such a note is to be adjudged dishonored so soon after its date. (See the cases cited in Chitty on Bills, 245, notes (b) and (c), and id. 246, note (g), Am. ed. of 1839 ; see also Sill v. Cunningham, 1 Cowen, 397.) If it had not been on interest, not being a bank note, I should have thought it right to presume that it had been demanded, and payment refused, perhaps even by the time when G-rimshaw obtained it. I would presume it on the unwillingness which every prudent man feels to have his money lie idle ; and would presume that the holder had seen or sent to the maker immediately, and pressed him for payment. But I think that directly the contrary is to be presumed with regard to this note, which bore interest. Ho one would understand the parties to intend that these words meant interest for a few weeks only ; nor would the payee or purchaser of a note ordinarily desire to take it on the terms of a payment so soon. It would be contrary to the general course of business to demand payment short of some proper point for computing interest; such as a quarter, half a year, year, See. In the late case of Borough v. White, (6 Dowl. & Ryl. 379,) all the judges concurred expressly in saying, that such a note cannot be considered as dishonored till it is demanded and payment refused ; and they put themselves on its being a continuing note upon its face. When I say all the judges, I speak particularly of the report in Bowl. 4 Ryl- The same case is reported in 4 Barn. 4' Cress. 325, where Littledale, J. alone is made expressly to declare that as the true rule; though I think what Bay ley and Holroyd, Js. are there made to say, comes pretty much to‘the same thing.
Hew trial denied.