Farrell v. Fritschle

• Decision Date: 31 March 1860
• Citation: 30 Mo. 190
• Parties: FARRELL, Respondent, v. FRITSCHLE et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 190

FARRELL, Respondent,

v.FRITSCHLE et al., Appellants.

Supreme Court of Missouri.

March Term, 1860.

1. In a case of the non-payment of a negotiable promissory note, which has been negotiated, the four per cent. damages, allowed by the seventh section of the act concerning bills of exchange and negotiable promissory notes (R. C. 1855, p. 294), can not be recovered, if payment of the principal sum, with the interest and charges of protest be made within twenty days after demand or notice of dishonor.

2. If suit be brought on such a note within twenty days from the maturity of the note, the plaintiff will not be entitled to the four per cent. damages.

Appeal from St. Louis Circuit Court.

Decker & Voorhis, for appellant.

I. The right to recover damages does not accrue until the period of twenty days from maturity has elapsed. (R. C. 1855, p. 295, § 11.) If suit be instituted between maturity and the period of twenty days thereafter, plaintiff has no cause of action so far as damages are concerned.

Burke and Mauro, for respondent.

I. The principal sum was not paid within twenty days after demand. The plaintiff was entitled to recover damages.

SCOTT, Judge, delivered the opinion of the court.

This was a suit upon a negotiable promissory note by endorsee against maker and endorsers. Upon the trial it appeared that the suit was brought within the period of twenty days from the maturity of the note. The court gave judgment for the amount due on the face of the note, with damages at four per cent., and interest on the sum of the principal and damages from maturity. The allowance of the four per cent. damages is the matter of which complaint is made.

The eleventh section of the act concerning bills of exchange provides that “in cases of non-acceptance or non-payment of a bill drawn at any place within this state on any person at a place within the same, no damages shall be recovered, if payment of the principal sum, with interest and charges of protest, be paid within twenty days after demand, or notice of the dishonor of the bill.” The fifteenth section of the act places negotiable promissory notes on the same footing as inland bills of exchange, if the notes are negotiated.

As this suit was brought within twenty days from the maturity of the note, we can not see that the plaintiff had any right to the four per cent. damages at the time of bringing his suit. If he has commenced his suit for damages before they were due, he can not recover.

Judge Napton conc...