Merritt v. Jackson

• Decision Date: 03 March 1902
• Citation: 181 Mass. 69,62 N.E. 987
• Parties: MERRITT v. JACKSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 69

62 N.E. 987

MERRITT v. JACKSON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1902

COUNSEL

Elder, Wait &amp Whitman, for plaintiff.

J Lowell and J. L. Newell, for defendant.

OPINION

LATHROP, J.

This is an action against the defendant, as indorser of four promissory notes made by the Jackson Typewriter Company payable to the defendant upon demand, and indorsed by him in blank. One note is dated December 19, 1899, and the other three are dated January 5, 1900. Demand was made and notice given on April 4, 1900. In the superior court, after the introduction of evidence not material to the exceptions, the defendant requested the court to rule that upon all evidence the plaintiff was not entitled to recover. The court refused so to rule, and found for the plaintiff, and the case is before us upon the defendant's exceptions. The only question in the case is whether the demand was made within a reasonable time. St. 1898, c. 533, § 71, is in part as follows: 'Where it [the instrument] is payable on demand presentment must be made within a reasonable time after its issue.' Section 193 of the same act provides: 'In determining what is a 'reasonable time' or an 'unreasonable time' regard is to be had to the nature of the instrument, the usage of trade or business, if any with respect to such instruments, and the facts of the particular case.' Before the statute of 1898, which took effect on January 1, 1899, was passed, the law applicable to notes payable on demand was regulated by St. 1839, c. 121 which was retained in substance in the subsequent compilations of the statutes. Section 1 of this statute provided, in substance, that the maker should have the same defense against an indorsee as against a payee. Section 2 provided that on any promissory note, payable on demand, made after the act took effect, a demand made at the expiration of 60 days from the date thereof without grace, or at any time within that term, should be deemed to be made within a reasonable time. Section 3 provided for the liability of indorsers. Section 1 of this act was slightly changed by St. 1857, c. 192, but was revived, with an amendment, by St. 1858, c. 70. And so it appears in Gen. St. c. 53, § 10, and Pub. St. c. 77, § 14. Sections 2 and 3 of the act appear in Gen. St. c. 53, § 8, and Pub. St. c. 77, § 12. We have no doubt that the section of Pub. St. c. 77, last mentioned has been repealed by section 197, St. 1898, which provides: 'All acts and parts of acts inconsistent with the provisions of this act are hereby repealed.' We are therefore obliged to consider what is the law merchant which was in force in this commonwealth before the statute of 1839 took effect, and which is restored by the statute of 1898. Before St. 1839, c. 121, was passed, the rule was well settled that, as to a promissory note payable on demand, a demand, in order to charge an indorser, must be made within a reasonable time, and, if no such demand was made, the note was considered as overdue and dishonored. This question arose also in another class of cases, namely, as to the length of time in which a note payable on demand, and remaining unpaid, would be held to be dishonored, and subject to the grounds of defense which would be open to the maker in a suit by the payee. See Paine v. Railroad Co., 118 U.S. 152, 160, 6 S.Ct. 1019, 30 L.Ed. 193. But, while the general rule was well settled, there was found to be great difficulty in its application, and it was said to be impossible to fix any precise period, as each case depended upon its particular circumstances. Parker, C.J., in Field v. Nickerson, 13 Mass. 131, 137. In Seaver v. Lincoln, 21 Pick. 267, it was said by Chief Justice Shaw: 'One of the most difficult questions presented for the decision of a court of law is, what shall be deemed a reasonable time within which to demand payment of the maker of a note payable on demand in order to charge the indorser. It depends upon so many circumstances to determine what is a reasonable time in a particular case that one decision goes but little way in establishing a precedent for another.' As to what has been held by this court to be a reasonable or unreasonable time, the cases are thus summed up by Mr. Justice Dewey in Ranger v. Cary, 1 Metc. 369, 374: ' In Field v. Nickerson, 13 Mass. 131, the period of eight months was held not to be within a reasonable time to make a demand to charge the indorser; and in Seaver v. Lincoln, 21 Pick. 267, where the demand was made in seven days after the date of the note, it was held to be within due time. In Sylvester v. Crapo, 15 Pick. 92, a note that had...