Iowa State Sav. Bank v. Wignall
| Decision Date | 08 February 1916 |
| Docket Number | Case Number: 4215 |
| Citation | 1916 OK 178,53 Okla. 641,157 P. 725 |
| Parties | IOWA STATE SAVINGS BANK v. WIGNALL et al. |
| Court | Oklahoma Supreme Court |
¶0 1. BILLS AND NOTES--Negotiability--Provision of Note. A promissory note bearing date September 18, 1908, given and payable in this state, and otherwise negotiable, is not rendered non-negotiable by the provision, a part thereof: "We, the makers, sureties, guarantors of this note, hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and diligence of bringing suit against any party thereto and consent that time of payment may be extended without notice thereof to any of the sureties of this note," where all of the makers are principals.
2. SAME. There being neither sureties, indorsers, nor guarantors, such provision does not apply to any party signing the note; and there being no person or persons to whom the provision applies, the presence of the clause does not render the note non-negotiable.
Thompson & Patterson, for plaintiff in error.
Blanton & Andrews, for defendants in error.
¶1 The only question necessary to a decision in this case is whether the notes sued on, each bearing date September 18, 1908, executed and payable at Maysville, Okla., are negotiable. That part of the notes which it is said is destructive of their negotiability is as follows:
"We, the makers, sureties, indorsers, guarantors of this note, hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and diligence of bringing suit against any party thereto and consent that time of payment may be extended without notice thereof to any of the sureties of this note."
¶2 In general terms, a promissory note may be defined to be a written promise by one person to pay to another person therein named, or order, a fixed sum of money, at all events, at a time specified therein, or at a time which must certainly arrive. The jurisprudence which regulates promissory notes and bills of exchange is founded upon and embodies the usages of merchants in different commercial countries. This custom of merchants or lex mercatoria grew out of the necessity and convenience of business, and, although different from the general rules of the common law, it was ingrafted into it, and became a part of it. Like all other substantive law, this system has been the creature of growth. Founded on the custom and usage of merchants, it is today the combined result of reason and experience, slowly modified by the necessities and changes in commercial affairs. It has been, and is in force in the states of the Union, except as modified by statutes. The rights and liabilities of parties to negotiable instruments, where not affected by statutes, are to be determined in accordance with this commercial law. Established as it has been by ancient usage, the lex mercatoria is frequently arbitrary and not deducible from logical considerations. At the time of the execution of the notes, a negotiable instrument was defined by section 3592, Wilson's Rev. & Ann. Stat. 1903, as follows:
"A negotiable instrument is a written promise to [or] request for the payment of a certain sum of money, to order or bearer."
¶3 Other sections of the statutes provide: Section 3593, that a negotiable instrument must be payable in money only and without any condition not certain of fulfillment; section 3594, that the person to whose order a negotiable instrument is made payable must be ascertainable at the time the instrument is made; section 3595, that a negotiable instrument may give to the payee an option between the payment of the sum specified therein and the performance of another act, but as to the latter the instrument is not within the provision of article 1, chapter 54, of the statutes; section 3596, that a negotiable instrument may be with or without date, and with or without designation of the time and place of payment; section 3597, a negotiable instrument may contain a collateral pledge of security, with authority to dispose thereof; while by section 3598 it is provided that a negotiable instrument must not contain any other contract than such as is specified in article 1. Other sections fixing the time when and the place where notes of a certain character are payable, as well as various provisions respecting indorsement, demand, presentment, dishonor, waiver of presentment, and notice of dishonor, may be found in the statutes, while section 3600 divides negotiable instruments into six classes, of which promissory notes constitute one class. It is said by the defendants in error that the notes sued on are in contravention of the statute; hence they are nonnegotiable. This is the material inquiry presented. In Missouri-Lincoln Trust Co. v. Long, 31 Okla. 1, 120 P. 291, the note on which suit was brought contained the provision:
"The makers of this note hereby severally waive presentment for payment, notice of nonpayment, protest, and consent that time for payment may be extended without notice thereof."
¶4 It was observed by the court in the opinion that the form of the note there involved was a little out of the ordinary, in that the waiver and consent clause had relation to the makers of the note, whereas it was usually inserted for the purpose of extending the liability of sureties, guarantors, or indorsers. It was said:
¶5 The note in that case was made in the Indian Territory, and payable November 1, 1907, and was therefore not controlled by the Oklahoma statute. In De Groat v. Focht, 37 Okla. 267, 131 P. 172, the clause in the note provided:
"The indorsers, guarantors, and assignors, severally waive presentment for payment, protest and notice of protest thereof, for nonpayment of this note, and consent that the time of payment may be extended without notice."
¶6 And it was held that the provision named did not render the note nonnegotiable, and the rule announced by the court in Missouri-Lincoln Trust Co. v. Long, supra, was adhered to. In that case the note was given May 11, 1910, and hence was controlled by the present...
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