Shapleigh Hardware Co. v. Spiro

Appellant, Shapleigh Hardware Company, brought this action in the circuit court of Lauderdale county against appellee, Jonas Spiro, on a promissory note for ten thousand dollars with interest, signed by appellee and others, executed March 27, 1914, and due "on demand after date." There was a trial, and at the conclusion of appellant's evidence, on motion of appellee, the evidence was excluded and a verdict directed in appellee's favor, from which judgment appellant prosecutes this appeal.

The action was brought at the September, 1921, term of the court, and was begun more than six years after the date of the note sued on. Appellee pleaded, and the trial court held, that the note was barred by the statute of limitations of six years, and therefore appellant was not entitled to recover. The holding of the trial court was based on the theory that the note, being payable on demand, matured at once, and the statute of limitations, therefore, was set in motion from its date; that the statute began to run from its date, and not from the date demand for payment was made.

A printed form was used in the execution of the note. It will probably be an aid to the solution of this question to first set out the blank printed form used for the execution of the note and follow that with a copy of the completed note after the blanks were filled out:

Printed Form.

$ ____. St. Louis, Mo., ____.

____ after date ____ promise to pay to the order of ____, ____ dollars, for value received at ____, with interest at the rate of ____ per cent. per annum from ____, payable ____, and at the rate of eight per cent. per annum from maturity until paid.

______ ______

Due ____.

Completed Note. $10,000.00 Birmingham, Ala., March 27, 1914.

On demand after date we promise to pay to the order of Shapleigh Hdw. Co. ten thousand and no/100 dollars, for value received, at this office in St. Louis, with interest at the rate of six per cent. per annum from date, payable semiannually, and at the rate of six per cent. per annum from maturity until paid.

J.W. BEASLEY. W.M. EWING, JR. SAMUELS N. BONNELL. G.R. GILBERT. JONAS SPIRO.

Due ____.

This court held in Butts v. V. M.R. Co., 63 Miss. 462, that suit could be brought on an ordinary bill, or note, payable on demand, "on the date of its date or immediately," without demand having been previously made, and that, consequently, the statute of limitations began to run against such an instrument from its date. The holding of our court in that case appears to be in accord with the authorities elsewhere. The reason generally assigned by the courts for so holding is that the commencement of suit is a sufficient demand. The supreme court of Minnesota, in the case of Brown v. Brown, 28 Minn. 501, 11 N.W. 64, in discussing this question, said, among other things:

"It must be confessed that the idea that the commencement of a suit to enforce a debt should of itself work its maturity is strange and anomalous. The law usually requires the breach of a contract to precede the bringing of an action to enforce it."

Judge FREEMAN, in his notes to Wenman v. Mohawk Ins. Co., 28 Am. Dec. 464 (note on this subject, 468), after stating the general rule that the statute begins to run on a demand note from its date, says further:

"But if the tenor of the instrument is such as to indicate a clear intention to that effect, no action will lie thereon until after an actual demand and refusal, and the statute of limitations does not begin to run until then."

Merritt v. Todd, 23 N.Y. 28, 80 Am. Dec. 243, involved a note payable on demand, with interest. The court held that, in view of the provision for interest, the parties contemplated that actual demand for payment be made to mature the note. The court recognized the general rule, which it did not disturb in its opinion, that a mere demand note was matured at its date without actual demand, but held that the provision in the note for interest took it out of the general rule; that by the provision for interest the parties contemplated and intended that actual demand for payment should be made in order to mature the note. To the same effect is Yates v. Goodwin, 96 Me. 90, 51 A. 804. This case involved a demand note bearing interest. The court gave, among other reasons for its holding:

"It can hardly be supposed that this money was hired with the expectation on the part of any one concerned, that the payment of the note was to be immediately demanded or made, or, indeed, within any short period. We think, on the contrary, that the note given for a loan was intended to be a continuing security, an investment of a more or less permanent character."

In that case the general rule was recognized and left by the court in its opinion unmodified. The supreme court of Indiana, in the case of Daugherty v. Wheeler, 125 Ind. 421, 25 N.E. 543, recognizing the general rule, held, however, that, where a speedy demand, or notice to pay, would manifestly violate the intent and purpose of the contract, or where delay in making demand was contemplated by the contract, actual demand was necessary to mature the note. This view is supported also by Scovil v.Scovil, 45 Barb. (N.Y.) 517.

The general rule that a simple demand note is matured at the date of its execution without actual demand for payment has been so long and so well established by our court as well as most of the other courts in this country that we are unwilling to disturb it. However, it is subject to the just criticism that it makes the provision that the instrument shall be payable on demand mean the opposite of what the language indicates.

Does the note here come within the general rule and the reasons upon which it is founded? We think not. To so hold would not only make the clause in the note "on demand after date we promise to pay" meaningless, but, in addition, the stipulation in the note providing for interest would also be meaningless. That reads, "with interest at the rate of six per cent. per annum from date,payable semiannually, and at the rate of six per cent. per annumfrom maturity until paid." (Italics ours.) It will be observed that the first clause provides for interest at the rate of six per cent. from date, payable semiannually. That provision is plain, and means simply what it says; that from March 27, 1914, the date of the note, it was to bear interest at six per cent. per annum, payable semiannually. The second clause provides for interest at the rate of six per cent. per annum from maturity until paid. That means, of course, that the interest was payable annually instead of semi-annually. Now, if appellant is right in its contention that the note was matured as soon as it was executed, then one or the other of those clauses is meaningless and must go down; they cannot stand together. Certainly the note could not bear interest at the rate of six per cent. per annum from date, payable semiannually, and also at the same rate, payable annually, unless the parties intended to violate the law by providing for the usurious interest of twelve per cent., one-half payable semiannually and one-half annually. There is nothing in the note, however, to indicate that that was the purpose of the parties.

It will be noticed that on the blank printed form on which the note was executed, in its first clause providing for interest there was a blank left for the rate of interest to be inserted, while in the second clause the "rate eight per cent. per annum" was printed. In filling out the note, six per cent. was inserted in the blank in the first clause, and six per cent. was written over the printed word "eight" in the second clause, indicating that the filling out of the interest stipulation was not a mere formality in the preparation of the note; that the parties intended that the note should bear six per cent. interest from date, payable semiannually, and six per cent. interest from maturity, payable annually. It should be kept in mind that interest payable semiannually is of more value than interest payable annually at the same rate.

In construing a written contract the court will, if reasonable, give all of its provisions effect — none of them will be stricken down as meaningless. The instrument will be looked at as a whole in order to ascertain the intent and purpose of the parties. The parties will be presumed to have advisedly and deliberately used the language of the writing to convey their meaning.

Viewing the contract as a whole, we are of opinion that the terms "on demand after date," "from date," "from maturity," and "semiannually," were used advisedly by the parties, and that they intended thereby to convey the meaning that it was necessary, in order to mature the note, that actual demand be made by the payee; and, until that was done, that the note should bear interest at the rate of six per cent. per annum, payable semiannually, and that after actual demand, or maturity, it should bear interest at the same rate, payable annually. This construction makes the instrument mean what it says. Appellee's construction makes it mean what it does not say. It not only makes the words "on demand" meaningless, but one or the other interest clauses of the note as well. We therefore hold that the provisions of this note takes it out of the general rule declared by our court in the Butts case that a simple demand note is matured at date.

It follows from these views that on another trial parol testimony will be inadmissible to show what the note means. There is no real ambiguity in its provisions. It requires no explanation. Parol evidence, however, will be admissible on another trial on the question as to whether demand of payment was made by the payee, and, if so, on what date.

These views mean that the judgment of the court below must be reversed. But, in view of the fact that the trial court ruled out all of appellant's evidence, part of which was for the purpose of establishing the fact that actual demand for payment of the note was made, as well as the date of such demand, we are of opinion that the case should be reversed and remanded, and that final judgment should not be entered here. As to whether actual demand was made for the payment of the note, and, if so, whether within six years of the bringing of the action in this case, are facts that were not heard by the trial court. Appellant's evidence was offered and ruled out. Appellee offered none. Both parties should have an opportunity to be heard on those issues.

Reversed and remanded.