Demelman v. Brazier

Massachusetts Supreme Judicial Court

Demelman v. Brazier

79 N.E. 812, 193 Mass. 588, 1907 Mass. LEXIS 1234

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 3, 1907

StatusPublished

Cited by6 cases

This text of 79 N.E. 812 (Demelman v. Brazier) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Demelman v. Brazier, 79 N.E. 812, 193 Mass. 588, 1907 Mass. LEXIS 1234 (Mass. 1907).

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Opinion

Braley, J.

If the promissory notes held by the plaintiff were presented for payment before their maturity this action cannot be maintained against the indorsers, as the makers had not refused payment upon due presentment and demand. Wood v. Corl, 4 Met. 203, 205. By the law merchant which is part of our common law, each note was entitled to days of grace, and while grace has been abolished by the St. of 1896, c. 496, now R. L. c. 73, § 103, and negotiable paper is deemed to be payable ■ at the time named therein, unless there is a stipulation for delay, and when falling due upon Saturday may be legally presented for payment on the following Monday, there is no presumption that the laws of New York, by which these contracts are governed, contain similar statutory provisions. Lowell Trust Co. v. Pratt, 183 Mass. 379. Cribbs v. Adams, 13 Gray, 597. Murphy v. Collins, 121 Mass. 6. Kelley v. Kelley, 161 Mass. 111. When evidence of a similar statute is not furnished the ordinary presumption that the common law of that jurisdiction remains unmodified and is similar to our own must prevail, and accordingly it would follow that the notarial protest and notice of dishonor sent to the defendants were premature. Callender v. Flint, 187 Mass. 104, 107. Mechanics Bank v. Merchants Bank, 6 Met. 13, 23, 24.

The only question remaining is to determine if there was any evidence that the notes were there payable according to their tenor, at the date of presentment. By R. L. c. 175, § 77, it is provided that the “ existence, tenor or effect of all foreign laws may be proved as facts by parol evidence.” When therefore upon cross-examination, and without objection, the plaintiff explicitly stated that the notes were presentable and payable on the'day of their protest, then without further formal proof there was testimony the weight of which was for the consideration of the jury that the liability of the defendants,, who as indorsers had been seasonably notified, became fixed on that date. Lowell Trust Co. v. Pratt, ubi supra.

Exceptions sustained.

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Braley, J.

If the promissory notes held by the plaintiff were presented for payment before their maturity this action cannot be maintained against the indorsers, as the makers had not refused payment upon due presentment and demand. Wood v. Corl, 4 Met. 203, 205. By the law merchant which is part of our common law, each note was entitled to days of grace, and while grace has been abolished by the St. of 1896, c. 496, now R. L. c. 73, § 103, and negotiable paper is deemed to be payable ■ at the time named therein, unless there is a stipulation for delay, and when falling due upon Saturday may be legally presented for payment on the following Monday, there is no presumption that the laws of New York, by which these contracts are governed, contain similar statutory provisions. Lowell Trust Co. v. Pratt, 183 Mass. 379. Cribbs v. Adams, 13 Gray, 597. Murphy v. Collins, 121 Mass. 6. Kelley v. Kelley, 161 Mass. 111. When evidence of a similar statute is not furnished the ordinary presumption that the common law of that jurisdiction remains unmodified and is similar to our own must prevail, and accordingly it would follow that the notarial protest and notice of dishonor sent to the defendants were premature. Callender v. Flint, 187 Mass. 104, 107. Mechanics Bank v. Merchants Bank, 6 Met. 13, 23, 24.

The only question remaining is to determine if there was any evidence that the notes were there payable according to their tenor, at the date of presentment. By R. L. c. 175, § 77, it is provided that the “ existence, tenor or effect of all foreign laws may be proved as facts by parol evidence.” When therefore upon cross-examination, and without objection, the plaintiff explicitly stated that the notes were presentable and payable on the'day of their protest, then without further formal proof there was testimony the weight of which was for the consideration of the jury that the liability of the defendants,, who as indorsers had been seasonably notified, became fixed on that date. Lowell Trust Co. v. Pratt, ubi supra.

Exceptions sustained.

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79 N.E. 812, 193 Mass. 588, 1907 Mass. LEXIS 1234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demelman-v-brazier-mass-1907.

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