Fenno v. Gay

• Decision Date: 16 January 1888
• Citation: Fenno v. Gay, 146 Mass. 118, 15 N. E. 87 (Mass. 1888)
• Parties: FENNO v. GAY.
• Court: Supreme Judicial Court of Massachusetts

146 Mass. 118

15 N.E. 87

FENNO

v.GAY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 16, 1888.

Exceptions from superior court, Suffolk county; BRIGHAM, Judge.

Contract upon the following promissory note:

“$550.00.

BOSTON, May 20, 1880.

“On demand, after date, I promise to pay to the order of John Everitt five hundred and fifty dollars, payable with interest. Value received.

“C.H. GAY.”

Indorsed: “Pay Isaac Fenno or order. JOHN EVERITT.”

The writ was dated and the action begun May 21, 1886. The defendant's answer set up that the action was not commenced within six years next after the cause of action accrued. At the trial in the superior court, without a jury, the defendant having waived all defenses except the statute of limitations, the court ruled that the action was not commenced within six years next after the cause of action accrued, and found for the defendant, and the plaintiff alleged exceptions.E.O. Shepard, for plaintiff.

The statute of limitations is the only defense set up. In computing the six years “next after” a day, that day is excluded, according to the general rule. Paul v. Stone, 112 Mass. 27;Bemis v. Leonard, 118 Mass. 508.Hitchings v. Edmands, 132 Mass. 338, is not the same as the case at bar, and the decision there is not necessarily in conflict with that which the plaintiff here contends for. It is respectfully submitted that the construction of the note given in the decision of that case was not necessary, and may be regarded as argument only. It may be well held that a note payable “On demand after date” is not a note “payable on time.” It is not the same as, “one day after date, I promise,” etc.; nor is it payable upon condition of making a demand. It is an ordinary demand note, supplemented by the agreement that the maker shall not be compelled to pay it until the day after its date. In construing a contract, every word and clause shall be taken into consideration, and have an effect given to it if possible. Atwood v. Cobb, 16 Pick. 229. See Bigelow v. Willson, 1 Pick. 485, 494;Heywood v. Perrin, 10 Pick. 228, 230; Insurance Co. v. Read, 125 Mass. 365. The words “after date,” in the note in the case at bar, qualify and control the words “on demand.”

F.T. Benner, for defendant.

The note was a demand note, and suit might have been brought on it immediately on the day of its date, without demand. Hitchings v. Edmands, 132 Mass. 338. See Presbrey v. Williams, 15 Mass. 193. The latter case is not disturbed by Paul v. Stone, 112 Mass. 27, and is not inconsistent with the decision in Bemis v. Leonard, 118 Mass. 508.

BY THE...