Wheeler v. Warner — 47 N.Y. 519

Majority

p. 519

Jonas M. Wheeler, Respondent v. Mertilla Warner, Appellant.

Headnote

A promissory note, payable on demand, whether with or without interest, is due forthwith, and an action thereon, against the maker, is barred by the statute of limitations, if not brought within six years after its date. (Merritt, v. Todd, 23 N. Y., 28 , distinguished.)

(Argued February 9, 1872;

decided February 20, 1872.)

Appeal from judgment of the General Term of the Supreme Court, in the seventh judicial district, affirming a judgment in favor of plaintiff, entered upon decision of the court at circuit.

The action is upon a promissory note of $500, payable on demand with interest. Defence, statute of limitations. The statute had run against the note, and the action was barred, unless a demand was necessary, before the statute could begin to run. It was tried by the court, a jury being waived, who gave judgment for plaintiff for amount of note and interest.

H. A. Ghesebro, for appellant.

The action was barred by the statute. (Howland v. Edwards, 24 N. Y., 307 ; Herrick v. Wolverton, 41 N. Y., 581 .)

p. 520

K G. Larpham, for respondent.

A demand was necessary before note became due. ( Wethey v. Andrews, 3 Hill, 582 ; Ranger v. Cary, 1 Metc., 369 , 373; Merritt v. Todd, 23 N. Y., 28 ; Payne v. Gardiner, 39 Barb., 634 ; S. C., 29 N.Y., 146 ; Scoville v. Scoville, 45 Barb., 517 ; Arcade Bank v. Whalen, Ct. Ap. Cases, 141, No. 16; 6 Rowl. & Ryl., 379; 9 M. & W., 15.)

The decision in Merritt v. Todd, ( 23 N. Y., 28 ), seems to have caused some disturbance in the law as to the right of parties upon demand notes. That case simply decided that an indorser on such a note bearing interest was not discharged, though no demand was made upon the maker until some three and a half years after the making of the note. That as between holder and indorser, such a note was not due until demand made. This rule, by the decision itself, was confined to that particular case, and did not apply, nor was it claimed to apply, to the rights of holders of such paper as against the maker. We are not disposed to extend the rule there laid down.

There is no divided opinion here or in England that upon such a note, with or without interest, an action may be maintained against the maker without any demand because it is due. No demand can be sued before due; no action will lie upon any claim of any description arising upon contract before it is due. To say that the suit is the demand is to repeat an unmeaning phrase as thus used, which no number of repetitions can make sensible. A demand note is due forthwith, and hence may be sued without demand, nor until this decision of Merritt v. Todd has there been any difference of opinion as to the time when such a note is barred by the statute. But that decision does not settle this question.

There is really no reason why the statute should not run, and that it does run both here and in England is settled beyond all doubt.

If Merritt v. Todd, in its reasoning, can be regarded as impugning this doctrine, it has been distinctly decided again

p. 521

in this court since that decision. (Howland v. Edmonds, 24 N. Y., 307 .) In that case the point was whether the note sued upon was substantially a demand note. The court held it was, and therefore barred. In this ease Merritt v. Todd, although just decided by the same court, was not alluded to or regarded as having any legitimate bearing upon the question. In Herrick v. Woolverton ( 41 N. Y., 581 ), originally tried before me, and reversed by my brethren of the Supreme Court, this point was discussed, and all the judges who delivered opinions agreed that a note like this is due forthwith so far as regards the statute. (See the authorities cited; and see Angel on Limitations, p. 89, § 95, and authorities cited in note; also an English elementary work, Darby & Bosang Stat. of Lim., p. 20, and cases cited.)

This rule is not affected by any decision to the contrary in this court.

The judgment must be reversed, and new trial ordered.

All concur.

Judgment reversed.