Caldwell v. . Rodman ( 1857 )

The action was brought on the following promissory note, viz:

"$206,65. NEW YORK, May 8th, 1849.

On demand, I promise to pay to the order of Mr. Jacob Best, two hundred and six 66-100 dollars, with interest, for value received."

One of the questions made upon the trial was whether the statute of limitations, which was pleaded, ran from the date or from the demand.

The Court, being of opinion that it ran from the date, instructed the jury to that effect. The plaintiff excepted.

Verdict for the defendant. Judgment and appeal by the plaintiff. The question presented to the Court in this case, arises under the statute of limitations, which is pleaded by the defendant, and which provides that all actions on the case shall be brought within three years next after the cause of action accrued. The only question for us, is as to the time when the plaintiff's cause of action accrued. The note in question is made payable on demand, and is dated the 8th of May, 1849. The writ issued on 30th of October, 1854. The defendant contends that the plaintiff's cause of action arose immediately upon the execution of the note; of which opinion was the Court below, and in which we concur. Parties in making their contracts have a right to stipulate for such terms as they agree upon — to specify when, where, and how, the contract is to be performed. If no time or place is designated for the payment of money, as in a promissory note payable on demand, no special demand is necessary, but the money is payable immediately; Chitty on Bills, 269. The case of Norton v. Ellam, 2 Meeson and Wellsby's Exchr. Rep. 460, is directly in point. The note there was as follows, "I promise to pay £ 400, on demand, with lawful interest." The statute was pleaded. Baron PARK says, "I entertain no doubt at all on this point. It is the same as money lent, payable on request, with interest, where no demand is necessary before bringing the action. The debt which constitutes the cause of action arises immediately on the loan. It is quite clear that a promissory note, payable on demand, is a present debt, and is payable without any demand, and the statute begins to run from the date of it." In Little v. Blunt, 9 Pick. Rep. 488, the same doctrine is recognised, and so in Newman v. Kittelle, 13 Pick. 418. In this State the same principle was recognised as far back as 1798. See the opinion of Judge Haywood in Freeland, assee, v. Edmunds, 2 Battle's, Haywood's Rep. 218, andLewis v. Lewis, same book, 191. Where money is payable on demand, and no particular time specified for its payment, it is payable immediately without demand. Mr. Angel, p. 114, sec. 95, states, "It has been invariably held, that if a promissory note is made payable in money, on demand, the statute commences running from the date of the note, and no special demand is necessary. See also Little v. Dunlap, Busb. Rep. 40. The foundation of the principle is, that the execution of the note, or the borrowing of money, where no time for the payment is specified, creates a present debt, upon which an action can be brought immediately. In this case, as an action could have been brought upon the note on 8th of May, 1849, or, in the language of the act, a cause of action upon it then accrued, the statute runs from that time, and the bar is complete. It is to be remarked, that the principle we have been considering, does not apply to a promise of a collateral nature, where no debt is created, until its performance; as on a promise to deliver goods on demand, or to pay money within a limited time after demand, and other like cases.

On behalf of the plaintiff, however, it is contended that the act of Assembly passed in the year 1836, alters the common-law rule above stated, and makes notes payable on demand, to be due on demand. The 5th sec. of the 13th chap. of the Revised Statutes, passed in 1836, is as follows: "All bills, bonds, or notes, made payable on demand, shall be held and deemed to be due on demand, made by the creditor, c., and shall bear interest from the time of the demand."

There would be much ground for the objection, if it were not for the alteration made in this provision by the Legislature in the act of 1856. The 5th sec. of the 13th ch. of the Revised Code, makes a most material alteration in that section of the act of 1836. By the act of 1856, bills, bonds, and notes, payable on demand, are made to be due when demandable by the creditor, and shall bear interest from the time they are demandable — thereby restoring the common law in this particular. We have seen, that when a promissory note is made payable on demand, the money secured is immediately due, and is therefore demandable by the creditor. But these acts were passed for the purpose of regulating the time as to the payment of interest, and were not intended to operate or alter the law as to the power or right of the creditor to bring his action. The cases referred to in Meeson and Wellsby, and 9th and 13 Pickering, establish the principle that the contract providing for the payment of interest, makes no difference. There is no error.

PER CURIAM, Judgment affirmed.