Doyle v. First National Bank , 131 Ala. 294 ( 1901 )

DOWDELL, J.

The plaintiff brought his action to recover damages from the defendant bank.for an alleged wrongful protest by said bank of a note made and executed by plaintiff. The note in question reads as follows:

“52.50. Birmingham, Ala. Nov. 11, 1899.

Six months fixed after date I promise to pay to the order of Mrs. E. L. Watts Fifty-two & 50-100 Dollars. Value received, with interest from maturity until paid. Payable at the First National Bank of Birmingham, Ala. The makers and endorsers of this note hereby expressly waive all right to claim exemption allowed by the constitution and laws of 'this or any other State, and agree to pay cost of collecting this note, including reasonable attorney’s fees, for all services rendered in any way, ill any suit against any maker or endorser, or in co.' lecting or attempting to. collect, or in securing or i attempting to secure this debt, if this note is not pa1' at maturity. Notice and protest on the non-payment 01 this note is hereby waived for each maker and endorser.

[Signed] Mark Doyle.”

The endorsements on the note were as follows: “E. L. Watts,” and, “Pay to First National Bank or order,” signed, “Industrial Ins. Co., Sam T. Hurst, Jr., Cashier.”

The note was protested for non-payment on May 11th, 1900. It is conceded that by the terms of the note, “six months fixed after date” precluded the idea of days of grace, and it is not contended by appellant that he was entitled to the three days of grace, nor is it contended that the provision contained in the note, waiving notice and protest, took away from the holder the right to have the same protested for non-payment on the day of its maturity. — Bellinger & Ralls v. Glenn, Brockway & Co., 80 Ala. 190; White v. Keith, 97 Ala. 668.

The vital question in this case is as to whether or not- the note was protested before its maturity, the contention of the appellant being that the note did not mature until the 12th day of May, -whereas it was protested on the 11th day, and the contention of appellee being that the note matured on the 11th, the day of its protest for non-payment.. By the terms of the note it became due and payabl e six months after date. In Donegan v. Wood, 49 Ala. 252, upon a similar question, it was held, in computing the time, that the day of the date of the note should be excluded. It was there said: “In this case the bill is dated on the 30th day of January, 1861, and is payable twelve months after date. This language excludes the day of the date, which would make the day of payment, exclusive of the days of grace, fall on the 31st day of January, 1862.” We approve of what was there said as to the exclusion of the day of date in computing the time, but it is quite evident that the court fell into an error in its computation. There can be no question that when a note is payable so many months after elate, tliat calendar months are intended. If in the present case the day of the date of the note, that is the 11th day of November, be excluded from the computation, and beginning with and including the 12th day of November, the six months would expire on and with the 11th day of May, succeeding. If, as contended by appellant, the 12th day of May ivas the day of maturity and payment, the maker would then be given, instead of six months according to the terms of the contract, six months and a day. From this it will be seen that a correct computation of time, excluding the day of the date of the instrument, would fix the maturity of the note on the 11th day of May following, and the same would be subject to protest for non-payment on that date. See 4 Am. & Eng. Eney. Law (2d ed.), 369; Hartford Bank v. Barry, 17 Mass. 94; Rochner v. Knickerbocker, 63 N. Y. 163. This view of the case renders it- unnecessary to notice the other assignments of error, as the errors complained of, if errors at all, are without injury.

Affirmed.