Bayliss ex rel. Gooding v. Pearson

Lowe, J.

Two or three points ruled against the defendants below are renewed here for revision.

I. It is claimed that the defendants are not personally liable upon the note sued, for the reason that it is in fact and law the instrument of School District No. 3.

In our opinion, the authorities cited do not sustain this position; yet they go as far in that direction as we deem . it safe at present. It will be observed that the instrument before us does not purport to have been executed by the school board of said District, or by any of its officers; that it contains no descriptive words, either in its execution or upon the face thereof, showing the relation of agency, or even the name of the principal. School District No. 8 is named, to be sure, as the place where the defendants were erecting qr superintending the erection of a school house, but not that they were doing it for or in behalf of said District. It would be carrying the doctrine of agency to a dangerous length to hold that upon such an instrument the signers are not personally responsible.

II. It was proved before the referee that the work had not been done according to contract, and that School District No. 3 had sustained a damage greater than the amount due on the note, which it was claimed should have been allowed as an offset. The allowance of this claim would have been proper if the note sued had been the undertaking of said District. As we have seen that it was not, it -is sufficient to remark that the damage claimed was not between the same parties.

III. That there was excess of $2.91, resulting from an erroneous computation of interest, in the rendition of the judgment. The note being payable on demand, and no demand having been proved, it will only draw interest from date of suit, and not from the date of its execution. This, as a general rule, is undoubtedly true.

But in this case the evidence shows that the defendants, the next day after the execution and delivery of said note, paid thereon four hundred dollars, and in nine days thereafter paid one hundred and thirty dollars and seventy cents more on the same undertaking. These acts by the parties to the instrument are equivalent to a demand, that is, they virtually constitute an acknowledgment that the note was due at that time, and being due, the interest, by the terms of the statute, commenced running. The reason why interest does not run upon paper of this kind until demand made, is, because such demand is necessary in contemplation of law to mature the debt. Any other act which the parties may do, having the same legal effect of showing the debt due, should be followed by the same result. For instance, in the case of Etheridge v. Binney et al. 9 Pick., 272, it was held, in regard to such paper, that, “where the lender calls for and actually takes security for the loan, he is entitled to interest from that time, this being equivalent to a demand.” Judgment below is

Affirmed.

The counsel for the appellant filed a petition for a rehearing of the questions of law and fact involved in this case, but, after being considered, it was overruled by the Court.