President of the City Bank v. Cutter

20 Mass. 414

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1826
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. We are of opinion that the plea of tender is bad, the tender not having been made until the day after the debt became due against the defendants by means of the notice to them of nonpayment by the maker of the note.¹ The doctrine of a reasonable time for the indorser to pay, has not been received and acted upon m this country, and is doubted by the highest authority on this subject in England. Our doctrine, as established in the case of Shed v. Brett, and indeed always practically recognised, is, that the suit may be brought on the very day the note becomes due, after demand and notice, for there is then a breach of the promise.² If the note is not paid during the business hours of the day, if the money is to be paid into a bank, a right of action has accrued. Whether a tender at any time during that day to the holder would be sufficient, this case does not call on us to decide.

We are also satisfied, that the notarial fees could not have been demanded, if the tender had been seasonable and sufficient in other respects, because the agency of a notary is not necessary, however it may be for the convenience of the parties.

We think the counsel for the defendants has satisfactorily shown by authorities, that commencement day cannot be enforced as a day of reduction of the credit on a note, oy the general principles of law.³ It is not in the language of the common law a holiday, though it is a day of festivity and amusement in the neighbourhood of the university. But it is a fit subject of a usage, which will bind all those dealing with a bank which has adopted it as a day when business is not there to be done. It is found to have been the usage of the City Bank to regard it in this light, and the report finds that the defen Jants had express knowledge of this usage. And so also as to the manner of the notice and of the demand.

In regard to the supposed variance, we think the objection not tenable. It is held, that if the plaintiff avers that he presented a bill or note and demanded payment, this allegation will not be proved by evidence that the party had absconded, so that the demand could not be made upon him. This is because the fact proved renders a demand unnecessary, and of itself makes an indorser or drawer liable. The case before us is different. An independent fact which is to answer instead of a demand, is not found, but a demand is proved in a form which has been agreed upon by the party to be affected by it, that is, that there is a usage as to this form of demand, to which usage he has given an implied assent. The case of Jones v. Fales, which stands at the foundation of the law in this commonwealth, and by which hundreds of cases have since been decided, is entirely decisive of this case on this point. In that case the averment, and the evidence to support it, were the same as in this.

We think the note’s not being payable at the City Bank makes no difference, as it was there negotiated. On this point also the case of Jones v. Fales is conclusive.¹

Judgment according to verdict.

1 In strictness a plea of tender is applicable only to those cases, where the party pleading it has never been guilty of any breach of his contract. Hume v. Peploe, 8 East, 168; Frazier v. Cushman, 12 Mass. R. 277. See Rose v. Brown, Kirby, 293.

The law in this respect is altered in Massachusetts, so that the payment or the tender of payment of the whole sum due on any contract for the payment of money, although made after the money has become due and payable, may be pleaded to an action subsequently brought, in like manner and. with like effect as if such payment or tender had been made at the time prescribed in the contract. Revised Stat. c. 100, § 14.

By the common law and the practice of Connecticut, a tender of a debt is good, though the day of payment has elapsed. Tracy v. Strong, 2 Connect. R. 659.

2 See Greeley v. Thurston, 4 Greenl. 479; Crenshaw v. M'Keirnan, 1 Minor, (Ala.) 173; Bayley on Bills, (Phil. and Sewall’s 2d ed.) 345; Wilson v. Williman, 1 Nott & M‘Cord, 440. But see Osborne v. Moncure, 3 Wendell, 170.

3 The holder of a dishonored note is excused from giving notice of nonpayment to the indorser on the fourth of July. Cuyler v. Stevens, 4 Wendell, 566.

1 See Weld v. Gorham, 10 Mass. R. (Rand's ed.) 367, n. (a); Bank of Washington v. Triplett, 1 Peters, 25; Renner v. Bank of Columbia, 9 Wheat. 581.