Farmers' Nat. Bank v. Venner
| Decision Date | 05 September 1906 |
| Citation | 192 Mass. 531,78 N.E. 540 |
| Parties | FARMERS' NAT. BANK OF ANNAPOLIS VENNER v. VENNER et al. VENNER v. FARMERS' NAT. BANK OF ANNAPOLIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H. E. Bolles, C. H. Tyler, and B. D. Barker, for Farmers' Nat. Bank of Annapolis.
C. F Choate, Jr., Fred'k H. Nash, and A. F. Clarke, for C. H Venner.
These two actions were tried together by the court sitting without a jury. The first is an action of contract by the plaintiff bank as holder against the defendants as makers, to recover the balance alleged to be due on a certain promissory note after the sale and application of the collateral. The note is dated 'New York City, May 14th, 1892,' and is payable on demand after date to the order of the makers at the office of Wilson, Colston & Co., Baltimore, and was indorsed by the defendants. The writ was dated May 13, 1898, the last day before action would have been barred by the statute of limitations. The plaintiff is a banking association organized under the laws of the United States and having its usual place of business at Annapolis in the state of Maryland. The defendants were formerly copartners doing business in New York City under the name of C. H. Venner & Co. Personal service was made in this state on the defendant Venner, but no service was made on either of the other two defendants. The firm of C. H. Venner & Co. was dissolved July 31, 1892, and the assets became the sole property of the defendant Venner.
The second action is tort for the conversion of $26,000, par value, bonds of the American Waterworks of Omaha, Neb., pledged as collateral to secure the payment of the above note. The note provided, amongst other things, that the holder might sell the collateral or any part thereof on nonperformance of his promise by the maker 'in such manner as the holder hereof may deem proper without notice at any stock exchange or at public or private sale at the option of the holder hereof, and with the right on the part of the holder hereof to become purchaser thereof at such sale.' It also contained a provision that The note is signed 'C. H. Venner & Co.' and the words 'Due on demand' immediately precede the signature. There was evidence tending to show, or from which it could have been found, that the note and bonds were presented to the defendant Venner in person at his office in New York City and a demand for payment was made. There was also evidence that a demand was made upon him for the payment of $5,000 on account and for additional collateral under circumstances which justified the latter according to the terms of the note. Neither of the demands thus made was complied with. There was no evidence of a presentment or demand at the office of Wilson, Colston & Co. in Baltimore, or that there were funds there to meet the note if it had been presented. The collateral was sold through the firm of A. H. Muller & Son in New York City and was bid in for the bank at a price, except as to one bond, very much less, as there was testimony tending to show, than other bonds of the same issue were sold for before and after the sale in question. This constitutes the conversion complained of. It is conceded, or, at least, is stated in the bill of exceptions as a fact, that A. H. Muller & Son were proper auctioneers, and that the place where the bonds were sold was a proper place to sell them.
The court found for the plaintiff in the first action in the sum of $24,865.26, and for the defendant in the second action. The cases are here on exceptions by the defendant Venner to the refusal of the court to give certain rulings requested by him and to the finding that was made.
We see no error in the rulings or refusals to rule, or in the finding that was made.
The plaintiff contends in the first place that no action can be maintained on the note because no demand was made for its payment at the office of Wilson, Colston & Co., in Baltimore. It is settled in this state both at common law and recently by statute and by the weight of authority in this country, contrary to the law in England, that, where a note or bill of exchange is payable at a particular time and place, no demand or presentment at the place named is necessary in order to entitle the holder to maintain an action upon the note or bill against the maker or accepter. Ruggles v. Patten, 8 Mass. 480; Carley v. Vance, 17 Mass. 389; Payson v. Whitcomb, 15 Pick, 212; Wright v. Vermont Life Ins. Co., 164 Mass. 302, 41 N.E. 303. Rev. Laws, c. 73, § 87. For a collection of cases see 1 Daniel on Negotiable Instruments (3d Ed.) 643; 1 Parsons on Notes and Bills (1st Ed.) p. 305 et seq.; 4 Am. & Eng. ency. of Law (2d Ed.) 373. We see no valid distinction between a note payable on time at a particular place and a note payable on demand at a particular place. No demand is necessary, before suit, where a note is payable generally on demand. And as we have seen no demand is necessary when a note is payable on time at a particular place. And it seems to us that the fact that both circumstances are found in the same note cannot operate to change the rule and render a demand necessary when it would not otherwise be required. McKenney v. Whipple, 21 Me. 98; Gammon v. Everett, 25 Me. 66, 43 Am. Dec. 255; Haxtun v. Bishop, 3 Wend. (N. Y.) 13; Montgomery v. Elliott, 6 Ala. 701; Dougherty v. Western Bank, 13 Ga. 287; Bowie v. Duvall, 1 Gill & J. (Md.) 175.
We think, therefore, that the refusal of the court to rule as requested, that in order to maintain the action the plaintiff was bound to prove a demand at the office of Wilson, Colston & Co. and that a refusal of a demand to pay the note at any other place did not constitute a default in the payment of the note, was correct, and that the court was right in ruling, as it did, that a sufficient demand was made though not made at the office of Wilson, Colston & Co. in Baltimore. The note is dated and apparently was made in New York. But it was given in renewal of a note previously held by Wilson Colston & Co. and was to be paid in Baltimore, and, it fairly may be inferred, was delivered to the...
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