Business Aircraft Corp. v. Electronic Commun., Inc., 14380
| Decision Date | 28 April 1965 |
| Docket Number | No. 14380,14380 |
| Parties | BUSINESS AIRCRAFT CORPORATION, Appellant, v. ELECTRONIC COMMUNICATIONS, INC., Appellee. |
| Court | Texas Court of Appeals |
Jack H. Kaufman, San Antonio, for appellant.
H. Maxwell Parker, San Antonio, for appellee.
This is a suit by Electronic Communications, Inc., the assignee of a non-negotiable promissory note, against Business Aircraft Corporation, the payor of the note. The note was payable in four equal annual installments, the first of which fell due on December 27, 1963, was not paid. Thereafter, on May 18, 1964, the holder of the note declared all four installments due, placed the note in the hands of an attorney, and suit was filed on May 20, 1964, for the full amount of principal, interest and attorney's fees provided for in the note.
The trial court granted plaintiff's third motion for a summary judgment for the full amount, as prayed for, and the defendant has prosecuted this appeal.
Appellant's first contention is that appellee could not legally accelerate the payment of the note and file suit without first presenting the note for payment and giving appellant a chance to pay the installment due. We do not agree. This note is not a negotiable note, and is not governed by the Uniform Negotiable Instruments Act, Arts. 5932-5948, inclusive, Vernon's Ann.Civ.Stats., but by the common law governing non-negotiable notes. 10 C.J.S. Bills and Notes §§ 24, 345, pp. 431, 847.
It is true that there the note was payable in San Antonio, Bexar County, Texas, at no particular place, and if it had been a negotiable note it would have been payable at the place of bsuiness of the payor, and presentment for payment there would have been required in the absence of a waiver, before there would have been any default, Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614 (1948); 5 A.L.R.2d 963, but, being a non-negotiable note, containing no provision for a presentment or demand for payment, no such presentment or demand was required. McDougall v. Hazelton Tripod-Boiler Co., 6 Cir., 88 F. 217; 8 C.J. 528.
The first installment fell due on December 27, 1963, and suit was not filed until May 20, 1964. In the absence of proof to the contrary, it will be presumed that during this period of over four months appellant was given ample opportunity to pay this past due installment. McDougall v. Hazelton Tripod-Boiler Co., supra.
This being a non-negotiable note, it is governed by the law of contracts and, under the facts here, it was the duty of the payor to fulfill his contract to the holder of the note to pay this first installment in some way. 10 C.J.S. Bills and Notes § 24, page 431.
However, the appellant would be permitted to show as a matter of defense that he had sufficient funds on hand, and had been ready and willing to pay this first installment on its due date, and every day...
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