Greene & Co. v. Raymond Bros.

• Decision Date: 31 October 1879
• Citation: 9 Neb. 295,2 N.W. 881
• Parties: GREENE & CO., PLAINTIFFS IN ERROR, v. RAYMOND BROS., DEFENDANTS IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 295

2 N.W. 881

GREENE & CO., PLAINTIFFS IN ERROR,

v.RAYMOND BROS., DEFENDANTS IN ERROR.

Supreme Court of Nebraska.

Filed October, 1879.

Error from the district court for York county.

France & Sedgwick, for plaintiffs in error.

Edward Bates, for defendants in error.

LAKE, J.

Was the action below prematurely brought? This is the first question, and the principal one to be answered. It is only in the exceptional cases of fraud on the part of the debtor, mentioned in section 237 of the Code of Civil Procedure, that an action can be properly brought on a claim before it is due. This case is not within the exception. It was commenced on the 2d day of March, 1878, to recover upon two alleged causes of action; the first for the sum of $55.45, on an account for goods sold and delivered, and the second for the sum of $209.87, on a certain draft drawn by the defendants upon the plaintiffs in error, dated January 31st, 1878, payable ten days after date, to the order of the York county bank, and “accepted, payable March 1, 1878.”

It appears that, for the account on which the first cause of action was based, a draft had been drawn by Raymond Brothers, and duly accepted by Greene & Co., on the twenty-eighth of February, 1878, payable to the order of Wm. McWhirter. These drafts both belonged to the drawers thereof and were resorted to merely as a means of collecting moneys owing to them from the drawees for goods sold and delivered. If the drawees were entitled to the usual grace in the time of payment that is accorded to commercial paper generally, then it is clear that the action was prematurely brought, at least as to the larger of these drafts.

By section 3, c. 32, Gen. St., it is provided that “all notes, bonds or bills made negotiable by this chapter shall be entitled to three days' grace in time of payment,” etc.; and section 1 of the same chapter declares that “all bonds, promissory notes, bills of exchange, foreign and inland, drawn for any sum or sums of money certain and made payable to any person or order, or to any person or assigns, shall be negotiable,” etc.

The drafts in question are certainly covered by this language; they belong to the class of commercial papers styled inland bills of exchange; they are drawn for “sums of money certain,” and are payable to the order of persons named therein.

But it is urged that the larger draft, the one in suit, was shorn of its negotiable character by the qualified terms of acceptance. By this the time of payment was changed from “ten days after date,” as drawn, to “March 1, 1878”--an extensionof some twenty days. This...