Hodges' Administrator v. Asher
| Decision Date | 11 May 1928 |
| Citation | 224 Ky. 431 |
| Parties | Hodges' Administrator v. Asher. |
| Court | United States State Supreme Court — District of Kentucky |
1. Limitation of Actions. — By the great weight of authority, a note payable on demand or on demand after date is payable immediately, and the statute of limitations begins to run from the date of the instrument.
2. Limitation of Actions. — Where note payable on demand after date was executed in 1905, and payee did not die until 1911, statute of limitations began to run during payee's lifetime, and was not suspended by his death or during the time when there was no administrator.
3. Limitation of Actions. — Where more than 15 years elapsed after execution of demand note, and administrator of deceased payee did not bring suit thereon within one year after his qualification, as permitted by Ky. Stats., sec. 2526, held that action on note was barred by 15 year statute.
4. Limitation of Actions. — Fact that maker of notes became surety on bond of administrator of deceased payee and bond of guardian of payee's child held not alone sufficient to estop maker from pleading statute of limitations, in action on note.
Appeal from Bell Circuit Court.
JAMES H. JEFFRIES for appellant.
CLEON K. CALVERT and J.G. BRUCE for appellee.
Affirming.
On January 1, 1905, A.J. Asher executed and delivered to W.J. Hodges two promissory notes; one for $980.69, and the other for $1,400.72, each payable "on demand after date."
On April 16, 1927, the First State Bank of Pineville, as administrator of Hodges, brought this suit against Asher to recover on the notes. Asher filed an answer in two paragraphs, pleading, in substance, that each of the notes was barred by the 15-year statute of limitations. Plaintiff's demurrer to each of the paragraphs was overruled, and thereupon it filed a reply by which it sought to avoid the plea of limitations. A demurrer having been sustained to the reply, and plaintiff having declined to plead further, the petition was dismissed. Plaintiff appeals.
Though there is some authority to the contrary, the great weight of authority in America is to the effect that a note payable on demand is payable immediately, and the statute begins to run from the date of the instrument. The basis of the rule is that, as payment can be easily demanded, an actual demand is not necessary to complete the cause of action, but the commencement of a suit is a sufficient demand. The same rule applies to notes payable "on demand after date." 17 R.C.L. 769, 770; Gerke Brewing Co. v. Busse, 11 Ky. Law Rep. 322; O'Neil v. Magner, 81 Cal. 631, 22 P. 876, 15 Am. St. Rep. 88; Fenno v. Gay, 146 Mass. 118, 15 N.E. 87; Kraft v. Thomas, 123 Ind. 513, 24 N.E. 346, 18 Am. St. Rep. 345; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Luther v. Crawford, 213 Ill. 596, 73 N.E. 430; Darnall v. Magruder, 1 Har. & G. (Md.) 439. It follows that the plea of limitations was good unless the facts pleaded in the reply were sufficient to avoid the effect of the statute.
Briefly stated, the facts relied on to avoid the plea of limitations are these: The notes were executed on January 1, 1905. The payee, W.J. Hodges, was the son-in-law of A.J. Asher. Hodges died in the month of January 1911. During the same month his widow, Hettie Asher Hodges, was appointed and qualified as administratrix of his estate, with A.J. Asher as her surety. In April, 1911, a posthumous child, Willie Jean Hodges, was born. In July, Hettie Asher Hodges was appointed, and qualified, as guardian for the child, with A.J. Asher, Sr., as surety. Hettie Asher Hodges, the administratrix and guardian, died in the year 1916. On April 11, 1917, Bennett Asher was appointed, and qualified as guardian for the infant, Willie Jean Hodges, with A.J. Asher, Sr., as surety. Bennett Asher di...
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