Steinau v. Moody & Brewster , 100 Ga. 136 ( 1897 )

Justice.

The note sued upon was payable at a bank. Civil Code, §3688 embraces two distinct features of legislation. It undertakes to- enumerate the instances in which an endorser upon a promissory note is entitled to- notice of protest and of non-payment alt maturity, and likewise to classify the commercial papers upon which days of grace shall be allowed. It provides that protest shall not be necessary except in the following instances: 1st, when a paper is made payable on its face at a bank or banker’s office; 2d, when it is discounted at a bank or banker’s office; 3d, when it is left at a bank or banker’s office for collection; and then proceeds to declare that in all such cases days of grace shall be allowed. The words “all such cases” are not to be limited in their significance to those oases in which protest for non-payment is actually necessary, but they are to be taken as enumerating the classes of commercial papers upon which days of grace are allowed, and as well upon which protest, in the absence of a waiver thereof, is required. Days of grace have ceased to be days of mere favor. They ■are now, by express legislation, days of right; and that it ■was the intent of the Georgia legislature- 'to- extend this right to the three classes of papers above enumerated seems to us to be manifest when we read §3680 of the Civil Oode, which undertakes to designate the class of commercial paper upon which days of grace are not allowed. The section of the code first above referred to, it will be seen, designates, the particular classes of paper upon which days of grace are allowed, and the section last above referred to designates in. a general way the class of paper upon which days of grace are not allowed, and provides: “The three days generally known as ‘days of grace/ and by custom allowed on papers payable at banks or brokers’ offices, shall not be allowed upon any bill or draft payable at sight.” §3680 recognizes the binding force of the custom which theretofore grew up and had become- a part of the law merchant, but limited its-application to- papers -other -than those drawn at sight. This, act was passed in 1850. Some doubt having arisen as to the class of papers upon which days of grace were -allowable,, it having been ruled by tbis court that days of grace were mot allowable upon p-apers payable- at places other than chartered banks (see Dalton City Company v. Haddock, 54 Ga. 584, and Banks v. Besser, 56 Ga. 201), afterwards, (see Acts 1876, p. 18) ’the legislature- passed an act, the provisions of which were incorporated in §3688 of the code, and which expressly allowed, in favor of the class of .papers therein enumerated, -three days of grace. This right, as we have said, exists by statute, independently of any necessity for the protest of a paper; and therefore a waiver of protest does not amount in law to- a waiver of the days of grace allowed by statute. "While- grace, protest -and notice of nonpayment, as was remarked by Justice Bleckley in the case-first above cited, “are- members of 'the same commercial family,” they are not so- intimately connected, that they cannot-be dissociated, and a person may well waive the -one-without abandoning at the same time- his right to the other.

The word “fixed” introduced into a commercial paper' seems to have a well ascertained legal significance., It means that the paper in, which it is written shall be payable upon, the exact date named for its maturity, and its insertion by the miaker is- the legal equivalent of a waiver of his: days of grace. Aside from this, however, the plea alleged and the evidence showed the significance of this term according to its general acceptation among persons engaged, in commercial transactions. This being true', the insertion of the word “fixed” in the note by the holder after its execution by the maker had the effect to change the nature of the obligation of the latter, and to cause his paper to mature, three days earlier than it would otherwise have done. It was a material alteration of the contract of the maker,, engrafted upon it a new obligation; and therefore, he having, pleaded and proved the alteration, the court erred in striking; his plea and excluding the evidence.

Judgment reversed.

All the Justices concurring.