Commercial Bank v. Hart ( 1894 )

Hoyt, J.

(dissenting). — I am unable to construe the allegations of the further answer as do the majority of the court, and for that reason am unable to concur in their opinion. It appears from such answer that the note in question was given in renewal - of a former one, and in view of that: fact, and of the practice of bankers which is so universal that the court should take judicial notice thereof, and of the language used by the defendant which must be held to have been as favorable to his contention as the facts would warrant, the contract, which he alleges, was not one which extended the time of payment of said note as such. It was only an agreement that the bank would grant another extension of the time for the payment of the debt upon the execution of a new note and the payment of the interest upon the one in question, when it became due. It is true that the language of one clause would perhaps justify the contention that the agreement was to extend the time of the payment of the note so that it should, from the date of such extension, become due in six instead of three months. But when this clause is construed with the rest of the answer, it is not sufficient to show that the date when the note would mature was changed by the agreement entered into after its execution.

The more reasonable construction of the entire transaction stated in the answer is that by such agreement the bank contracted that when the note became due at the expiration of three months, it would, upon the payment of interest and the execution of a new note, extend the time of payment as it had before done. If this was the contract, the note became due according to its terms, and the debt thereby secured could be then collected, unless the time of payment was extended by the execution of a new note and the payment of interest in accordance with the intention of the parties.

With this construction the answer was clearly insufficient, and the judgment upon the pleadings was warranted.