Harris v. Townsend

• Decision Date: 20 May 1912
• Citation: 101 Miss. 590,58 So. 529
• Court: Mississippi Supreme Court
• Parties: J. D. HARRIS, ADMINISTRATOR C. T. A. ESTATE, G. R. TOWNSEND, DECEASED v. MRS. ROXIE BOYLES TOWNSEND

58 So. 529

101 Miss. 590

J. D. HARRIS, ADMINISTRATOR C. T. A. ESTATE, G. R. TOWNSEND, DECEASED v. MRS. ROXIE BOYLES TOWNSEND

Supreme Court of Mississippi

May 20, 1912

March 1912

APPEAL from the circuit court of Montgomery county, HON. G. A MCLEAN, Judge.

Suit by Mrs. Roxie Boyles Townsend against J. D. Harris administrator. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Hill &amp Knox, for appellant.

The note sued on was made on the 14th day of March, 1904, and in the beginning reads thus: "On demand, or at my death, I, or my estate promise to pay. . ." It will be noticed that the deceased departed this life on or about June 10, 1910, more than six years after the execution of this note. Our contention is that the right of the appellee to sue on this note accrued to her more than six years before the death of G. R. Townsend, the maker thereof, and that the said note was barred by the statute of limitations after six years from the date of its execution, for the reason that the said note was payable on demand and the appellee, Mrs. Roxie Boyles Townsend, could have brought suit on said note immediately after its execution, or, at least, after the three days of grace elapsed. See the following authorities: Butts v. Railroad Co., 63 Miss. 462, 25 Cyc. 1071, par. f; also p. 1066, par. 2, especially the latter part of said paragraph 2 which reads thus: "The true test therefore to determine when a cause of action has accrued, is to ascertain the time when plaintiff could first have maintained his action to a successful result."

25 Cyc. 1100, par. 11: "When payable on demand." On this point see especially what our own court, in the case of Johnson v. Pyles, 11 Smedes & Marshall, 189, says as to when the statute of limitations begins to run. In this case the court says at page 193: "The statute of limitations begins to run whenever the cause of action accrues. In other words, the time limited is to be computed from the day upon which the plaintiff might have commenced an action for the recovery of his demand. Angell on Lim., 181."

Since the appellee, Mrs. Roxie Boyles Townsend, could have brought suit on this note against the deceased in his lifetime at least three days after the execution thereof--and certainly no court would hold that she could not have done so, nor could Townsend have defended upon the ground that the suit had been prematurely brought--then her right of action accrued at the time she could have brought suit thereon, and the statute of limitations began to run from that time, and not from the date of the death of G. R. Townsend, deceased. Our contention is that the appellee had no right of election in the matter, and could not wait more than six years after the execution of the note to bring her suit thereon; for we contend that the words, "or at my death," as used in said note were mere surplusage, and did not in any way give to appellee the right to wait until the death of G. R. Townsend to bring her suit, if the death of Townsend occurred more than six years after the execution of the note sued on. That is to say, that the appellee had no right to wait until after the death of G. R. Townsend, deceased, to bring her suit on said note, but that it was her duty, under the law, to have brought her suit against the deceased within six years after the date of the execution of the said note; and she having failed so to do, we contend that she is barred of her right of recovery and that the court below should have excluded the note from the consideration of the jury, and should have instructed the jury to find for the appellant.

The words, "or at my death," used in the note, did not prohibit the appellee from bringing suit upon said note immediately after the execution thereof, nor was the appellee required to first make a demand for payment upon the said Townsend before she could have instituted suit against him on said note, nor was she required to wait until the death of the said G. R. Townsend to bring her suit; but it was her duty to have brought it within six years after the execution of the note. In the case of Butts v. Railroad Co., 63 Miss. 465, the court says: "Suit may be brought on an ordinary bill or note, payable on demand generally, on the day of its date or immediately, without demand being previously made, and consequently the statute of limitations would begin to run against such an instrument from that date." And also says "and the principle is the same when the note or bill is payable on demand at a particular place."

It was not necessary under the decisions of our own and of other courts hereinbefore cited, for the appellee to have first made a demand upon the deceased in his lifetime before she could have brought suit on said note, but even if it had been, then the appellee was not a competent witness to testify against the estate of the deceased to the effect that she had not made any demand upon the deceased in his lifetime for the payment of said note. Sec. 1917 of the Mississippi Code of 1906.

Vernon D. Rowe, for appellee.

The note sued upon in this case has alternative maturity dates, and reads as follows:

"$ 292.50.

Mar. 14, 1904.

"On demand or at my death I or my estate promise to pay to Roxie Boyles Townsend the sum of two hundred ninety-two dollars and fifty cents value received with interest at ten per cent per annum from date until paid. Witness my hand and signature."

There is a maturity of even date with the note, and there is another maturity at the death of the maker of the note. When the first maturity date is under consideration, there can be no controversy as to when the statute of limitations began to run, because the rule is well-settled that, a note payable "on demand" generally, is due at once, and, of course, such a note is barred in six years from its date or at most, in six years, allowing three days of grace.

But this is not such a note. Here is a note payable on demand, or at the death of the maker. The rule stated above does not apply here. If it did, then it would permit the maker of a note to insert, in the alternative, a second due date, by which he contracts to pay a sum of money, either at one time or another, and then afterwards repudiate the obligation by pleading the statute of limitations against the note,...