Arnold v. Potomac Improvement Co.
| Decision Date | 23 March 1937 |
| Docket Number | 8455. |
| Citation | 190 S.E. 685,118 W.Va. 425 |
| Parties | ARNOLD v. POTOMAC IMPROVEMENT CO. et al. |
| Court | West Virginia Supreme Court |
Submitted March 3, 1937.
Syllabus by the Court.
1. A note payable on demand must be presented for payment within reasonable time after its issue. Code, 46-6-2.
2. An indorser on a demand note is relieved from liability unless demand for payment be made of the maker within a reasonable time after issuance of the note.
3. What is reasonable time within which to present a demand note for payment is a question of fact depending on the circumstances in each particular case.
4. It does not follow from the naked fact that an officer of a corporate maker is its indorser that he is entitled to any less consideration than must be accorded to indorsers generally.
5. When an action is tried by a court in lieu of a jury, its finding of fact will not be disturbed on writ of error unless it is against the plain preponderance of the evidence.
Error to Circuit Court, Mineral County.
Proceeding of notice of motion for judgment by George S. Arnold receiver of the First National Bank of Keyser, against the Potomac Improvement Company, William MacDonald, and W. J Koelz. Judgment for plaintiff against defendant Potomac Improvement Company. To review judgment relieving defendants MacDonald and Koelz from liability, the plaintiff brings error.
Affirmed.
Harry K. Drane, of Keyser, for plaintiff in error.
Emory Tyler and Wm. MacDonald, both of Keyser, for defendant in error.
In this proceeding of notice of motion for judgment, the plaintiff George S. Arnold, Receiver of The First National Bank of Keyser, recovered judgment against Potomac Improvement Company, a corporation, for $3110.2 9, but as to the defendants, William MacDonald and W. J. Koelz, there was judgment of nil capiat. The court acted without a jury, the latter having been waived by the parties. On writ of error awarded the plaintiff, there is here brought under review the action of the trial court in relieving the individual defendants from liability.
The action is based on a renewal note for $3,000.00, dated February 6, 1926, executed by Potomac Improvement Company by William MacDonald, president, indorsed by William MacDonald, W. J. Koelz, and H. C. Koelz, and payable on demand to The First National Bank of Keyser, West Virginia. The last-named indorser is a non-resident of the state and is not before the court in this case.
Interest was paid on the note at irregular times. The last credit, $120.00, November 21, 1932, covered the interest to February 6, 1933. There also appear from memoranda on the back of the note to have been two credits on principal, the first $272.35, September 19, 1933, and the second, $100.00, May 10, 1934. The latter appears under the caption, "Offset". What is the explanation thereof, we are not advised. The source of the credits, interest and principal, does not appear from notations on the note nor from any other evidence adduced at the trial.
The bank ceased active business March 6, 1933. The note was presented by the receiver to the Potomac Improvement Company, maker, and payment demanded August 26, 1935. Upon refusal of payment, the note was immediately protested and notice duly given to both the maker and the indorsers.
The gravamen of the case lies in the element of time involved. The circuit court held that the demand for payment which was made of the maker by the holder had not been made within reasonable time, and, for that reason, the individual defendants, indorsers, were released from liability.
By the negotiable instruments law, it is provided that where an instrument is "payable on demand, presentment must be made within a reasonable time after its issue, ex cept that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof." Code, 46-6-2. Attendant upon the proper application of this statutory requirement there necessarily arises the query as to the proper method of determining what is a reasonable time in a given case. In this jurisdiction, the rule is settled that the determination of such question is for the jury, or for the court where it acts without a jury. "What is reasonable time in which to present a demand note for payment is a question of fact depending upon the circumstances of each particular case." Davis National Bank v. Kight, 86 W.Va. 319, 103 S.E. 482. In a later case, recognizing this rule, it was stated by the court that "it is very generally held that what is a 'reasonable time' depends upon the nature of the instrument, the usage of trade with respect to such instrument, and the facts of the particular case." Morrison v. Frantz, 105 W.Va. 14, 16, 141 S.E. 394, 395. These statements respecting "reasonable time" and the manner of resolving the same are in conformity with general authority. Brannan's Negotiable Instruments Law (5th Ed.) § 193.
Inasmuch as the record does not disclose by whom the credits, both interest and principal, appearing on the back of the note were made, it must be presumed that they were made by the maker of the note, and not by the indorsers. Such being the necessary basis for approach, there is nothing in the situation to operate as an estoppel against the...
To continue reading
Request your trial