Colwell v. Colwell

• Decision Date: 15 April 1919
• Parties: COLWELL v. COLWELL.
• Court: Oregon Supreme Court

179 P. 916

92 Or. 103

COLWELL v. COLWELL.

Supreme Court of Oregon

April 15, 1919

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by E. K. Colwell against George L. Colwell. Judgment for defendant, and plaintiff appeals. Affirmed.

The principal allegations of the complaint are here set down:

"That on or about the 14th day of March, A. D. 1907, the defendant made his check in writing, dated on the said 14th day of March, 1907, payable to the order of the plaintiff herein, and delivered the same to this plaintiff, which said check is in words and figures following, to wit:

" 'No. 680.

Portland Or., March 14, 1907.

" 'Merchants' National Bank of Portland, Oregon: Pay to E. K. Colwell or order $1,500.00 fifteen hundred dollars.

" '[Signed] Geo. L. Colwell.'

"That said check was presented for payment on the 20th day of February, 1917, to the said Merchants' National Bank of Portland, Or., now doing business under the name of the Northwestern National Bank of Portland, Or., and payment of the same was refused, and the same was not paid, and the said defendant refused to honor or pay the same."

In addition thereto it is said that due notice of the dishonor of the check was given to the defendant, that it has not been paid, and that the face thereof is due to the plaintiff. The court sustained the following demurrer to the complaint: That it does not state facts sufficient to constitute a cause of action against the defendant, and that the action has not been commenced within the time limited by the laws of the state of Oregon. From the ensuing judgment the plaintiff appeals.

Frank T. Collier, of Portland (James L. Hope, of Astoria, on the brief), for appellant.

Jay Bowerman, of Portland (Fulton & Bowerman, of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

It will be observed that the check was presented for payment nine years, eleven months, and six days, after its delivery to the payee. It was made in Portland, Or., and directed to a bank in the same city. Under these circumstances this court has laid down the rule in Matlock v. Scheuerman, 51 Or 49, 93 P. 823, 17 L. R. A. (N. S.) 747, and note, thus:

"What is a reasonable time has been fixed by judicial decisions. As between the drawer and payee the rule is that when the payee to whom the check is delivered receives it in the same place where the bank on which it is drawn is located, he may preserve recourse against the drawer by presenting it for payment at any time before the close of banking hours on the next day"--citing 2 Daniel, Neg Inst. (5th Ed.) § 1090.

A check is an instrument designed for use presently, and not for a permanent investment. If A. owes B. a sum of money, the latter must commence his action within six years; but, if A. gives his check to B., this does not alter the circumstances in that respect beyond the requirement that the holder of the check must present it within a reasonable time. The statute declares that, except upon a judgment or a sealed instrument, an action must be commenced within six years upon "a contract or liability express or implied." L. O. L. § 6.

This provision is for the benefit of the drawer as well as of any other party to a check. The instrument is one upon which a possible action may be founded. If the holder would avail himself of the benefit of the contract embodied in it, or if he would enforce his remedy upon it, he is bound to act within the period limited by law. An act necessary in this behalf is a presentment of the check to the bank upon which it was drawn. The law says this must be done in a reasonable time. Condensed from a note to Aymar v. Beers, 7 Cow. (N. Y.) 705, 17 Am. Dec. 538, which treats of the subject of reasonable time in relation to bills and notes, we find the following in 3 R. C. L. 1194:

"When an act is required or permitted to be done within a reasonable time, it has been the cause of much perplexity to the courts to determine whether the question, 'What is a reasonable time?' is one of law or one of fact. Undoubtedly it is highly desirable that the court should decide the question as one of law, where it can be done without trenching upon the province of the jury in determining mere matters of fact, in order to secure uniformity and certainty in the adjudication of causes. The great difficulty is that this question is generally found so complicated with the peculiar facts of each case that it is often impossible to separate it, and so, from necessity, the whole matter is left to the jury. Where, however, from the simple, clear, and undisputed state of the facts, or from the similarity of the case to others which have been decided, the court can determine the question as it does other legal questions, by the application of settled principles and general and uniform rules, it ought to do so. But, whenever the special facts and circumstances are such that the court cannot, by the aid of any legal rule or principle, decide upon the legal quality of the facts, it is necessary that the jury should draw the inference in fact, with reference to the ordinary course and practice of dealing, and the general principles of morality and utility. Where the law itself prescribes what shall be considered to be reasonable time in respect to a given subject, the question is one of law, and the duty of the jury is confined to finding the simple facts. Where, on the other hand, the law does not, by the operation of any principle or established rule, decide upon the legal quality of the simple facts, or res gestæ, it is for the jury to draw the general inference of reasonable or unreasonable in point of fact. In such cases the legal conclusion follows the inference of facts; in other words, the question as to reasonable time, etc., is one of fact, and the time is reasonable or unreasonable in point of law, according to the finding of the jury in point of fact. Although in the class of cases under consideration the question is sometimes submitted to the jury as one of fact, the courts manifest a strong inclination, generally, to treat it as one of law for the sake of that uniformity of decision which is deemed so necessary in all questions of commercial law. But there is no lack of authority to the effect that ordinarily the question is one for the jury's determination. The frequently approved rule is that, where the facts are in dispute, it is a question for the jury to determine whether the note was presented in a reasonable time to the maker for payment, so as to bind the indorser, but that, where they are ascertained, it is a question for the court, and cannot properly be submitted to the jury as a question of fact."

There are many cases which hold that under all circumstances what is a reasonable time is a question of law for the courts. In respect to commercial paper, the authorities are practically unanimous on the proposition that, where all the facts are ascertained, either by the pleadings or by special verdict, the court must decide the question as one of law. Discussing the subject in Goltra v. Penland, 45 Or. 254, 77 P. 129, treating of a case involving the presentment of a claim to an administratrix, and whether or not she had a reasonable time within which to accept or reject it, Mr. Justice Bean says:

"The more serious objection to the instruction, however, is that it left the question whether the defendant had a reasonable time after the presentation of the claim in which to allow or reject it as one of fact for the jury."

After mentioning the date of presentment as April 18, 1901, and the commencement of the action as September 28th following, the court says:

"* * * So that it is admitted by the record that it was almost six months from the time of the presentation of the claim to the commencement of the action; and, as there was no reason offered by the defendant for her delay in not passing upon the claim, the question as to whether she had had a reasonable time in which to do so was for the court, and not for the jury. 'Generally, what is a reasonable time,' says Mr. Justice Strahan, in Fleischner v. Kubli, 20 Or. 328, 25 P. 1086, 'when the facts are undisputed, is a question of law for the court.' The same rule is stated by Mr. Justice Wolverton in Howell v. Johnson, 38 Or. 571, 64 P. 659.

"It is undisputed that the claim was presented to the executrix by the 1st of April, and was in her possession six months later, when

the action was commenced. This was clearly a reasonable length of time in which to determine whether she would allow or reject it. The court should have so declared as a matter of law, and not left the question for the jury."

The following authorities teach the same doctrine: Hadduck v. Murray, 1 N. H. 140, 8 Am. Dec. 43; Mohawk Bank v. Broderick, 13 Wend. (N. Y.) 133, 27 Am. Dec. 192; Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372; Utica Bank v. Bender, 21 Wend. (N. Y.) 643, 34 Am. Dec. 281; Ransom v. Mack, 2 Hill (N. Y.) 587, 38 Am. Dec. 602; Prescott Bank v. Caverly, 7 Gray (Mass.) 217, 66 Am. Dec. 473; Hill v. Hobart, 16 Me. 164, 168, Goodwin v. Davenport, 47 Me. 112, 74 Am.

Dec 478; Ph nix Insurance Co. v. Allen, 11 Mich. 501, 83 Am. Dec. 756; Walker...