Guckian v. Newbold

• Decision Date: 05 February 1902
• Citation: 23 R.I. 553,23 R.I. 594,51 A. 210
• Parties: GUCKIAN v. NEWBOLD.
• Court: Rhode Island Supreme Court

51 A. 210

23 R.I. 553

23 R.I. 594

GUCKIAN

v. NEWBOLD.

Supreme Court of Rhode Island.

Feb. 5, 1902.

Action by Thomas Guckian against Robert Newbold. There was a verdict for defendant, and plaintiff petitions for a new trial. Petition denied.

J. W. Hogan, for petitioner.

H. W. Hayes, for defendant.

STINESS, C. J. The plaintiff sues upon a promissory note alleged to have been given by the defendant to Michael Kerr, while the latter and the defendant were copartners, for the sum of $1,378, payable on demand, at the rate of 6 per cent. per annum, dated September 26, 1896, and indorsed over to the plaintiff April 11, 1898. A verdict having been rendered for the defendant, the plaintiff now petitions for a new trial upon the grounds that the verdict was against the evidence, and that erroneous rulings were made by the trial judge. We are of opinion that there was evidence sufficient to sustain the verdict.

The first exception relates to the cross-examination of the plaintiff's witness, who was offered simply to prove the signature and indorsement of the note in suit. The defendant was allowed to cross-examine upon the consideration of the note. While this was irregular, it is not a sufficient ground for a new trial, because, as the whole matter was gone into before the jury, the order in which the testimony was given could not affect its weight or character. The court does not see how it could prejudice the plaintiff whether the testimony of his own witness went in at one time or another.

The second exception was to allowing the defendant to ask the cashier of a bank, with whom the parties had business, to whom the credit on other notes of the firm of Kerr & Newbold was given. The admission of this testimony was erroneous, for the reason set forth by the plaintiff,—that it was irrelevant and immaterial. But this very fact shows that it is not a ground for a new trial. The court is unable to see, and it is not stated, how the answers could have influenced the jury improperly, or have prejudiced the plaintiff in making out his case.

The third exception is to the charge that interest was payable on the note annually. Two defenses were relied on at the trial: First, that the defendant never signed the note; and second, that, if it was found that he did, there was no consideration for it. On this last point it was claimed that the note was overdue, and that the plaintiff took it subject to the equities between the defendant and Kerr, the nominal payee. The instruction complained of was in connection with the latter question. When the case was before the court on the former petition for a new trial by the defendant (22 R. I. 279, 47 Atl. 543), we held that from the length of time the note had run, and the fact that it had not been recognized as a subsisting obligation by the payment of interest, the note was overdue, and subject, in the hands of the plaintiff, to the equities between the original parties; assuming that the words "with interest" were to be supplied before the words "at the rate of." Inadvertently we said that Kerr had held it for a year and a half,—the defendant being amply able to pay,—and had "received no interest on it, according to its tenor." We also said: "The nonpayment of annual interest would clearly render the note overdue in the hands of the plaintiff, and therefore subject to the equities between the original parties." What the court had in mind was this: That when a demand note had run so long, with no apparent reason for delay, and when, in addition, the note provided for interest, which most men expect to receive at least once a year, and the payment of which would have recognized the obligation, but none was paid, the note must be taken as overdue. The language used to express this opinion was neither apt nor clear. It is open to the inference made by the trial judge that the terms of the note required an annual payment of the interest. This court did not so intend. We agree with the rule claimed by the plaintiff,—that interest, payable at a rate per annum, without more, is due only when the principal is due, and that a mere default in the payment of interest will not be regarded as the dishonor of a note. 16 Am. & Eng. Enc. Law (2d Ed.) p. 1071; Koehring v. Muemminghoff, 61 Mo. 403, 21 Am. Rep. 402; Patterson v. McNeeley, 16 Ohio St. 348; Bank v. Kirby, 108 Mass. 497; Kelley v. Whitney, 45 Wis. 110, 30 Am. Rep. 697; Cromwell v. Sac Co., 96 U. S. 51, 24 L. Ed. 681; 1 Daniel, Neg. Inst. § 787; Bigelow, Bills & N. 445; Perley, Interest, 10. The instruction excepted to was erroneous, but the responsibility for it rests with the writer of this opinion, and not with the trial judge. Kelley v. Whitney was similar in this respect. In this case, however, the error was harmless, and it affords no ground for a new trial. The point involved was whether the plaintiff took the note subject to the equities of the original parties. If he did, it could make no difference to the verdict whether he was chargeable with notice from the terms of the note itself, or from nonpayment of interest. The charge was that the note was to be taken by the jury as overdue, and this was correct, whatever reason was given for it. There has been considerable difference of opinion about the time when a demand note is to be taken as overdue. It was first decided in this state in Atlantic De Laine Co. v. Tredick, 5 R. I. 171, in which Ames, C. J., said: "There is no case in this country which has gone so far as to hold such a note, when negotiated by the payee upwards of a year after its date, to be free from these equities in the hands of the holder." In Bacon v. Harris, 15 R. I. 599. 10 Atl. 647, Durfee, C. J. said: "The rule in this country is that a note payable on demand is overdue, for the purposes of negotiation, within reasonable time; and what constitutes such...