National Bank of Delaware at Wilmington v. Lindsay

• Decision Date: 17 December 1910
• Citation: 78 A. 407,25 Del. 83
• Court: Delaware Superior Court
• Parties: THE NATIONAL BANK OF DELAWARE AT WILMINGTON, a corporation existing under the laws of the United States of America, v. DAVID LINDSAY

78 A. 407

25 Del. 83

THE NATIONAL BANK OF DELAWARE AT WILMINGTON, a corporation existing under the laws of the United States of America, v. DAVID LINDSAY

Superior Court of Delaware, New Castle County

December 17, 1910

Superior Court, New Castle County, November Term, 1910.

ACTION OF ASSUMPSIT (No. 69, September Term, 1909) upon a promissory note.

General Demurrer to the four special counts of plaintiff's declaration.

The case is stated in the opinion.

Demurrer overruled.

Robert H. Richards for plaintiff.

Willard Saulsbury and Hugh M. Morris for defendant.

Judges BOYCE and HASTINGS sitting.

OPINION

BOYCE J.

This is an action of assumpsit, brought by the plaintiff, the holder, against the defendant, the indorser, on a promissory note, payable on demand. The declaration contains eight counts--four special and four common counts. The defendant filed a general demurrer to each of the said four special counts. The said several counts of the declaration demurred to disclose, in substance, that the note, sued upon, was made on the second day of November, A.D. 1903, the day of its date; that it was on that day delivered to the payee, who is the defendant in this action; that it was on that day, and before payment, indorsed by the defendant; that it was on that day delivered by the defendant to the makers; that it was on that day, and before payment, indorsed by the makers; that it was on that day delivered by the makers to the plaintiff bank, the present holder; that on the nineteenth day of February, A.D. 1906, it was duly presented and payment thereof was duly demanded at the plaintiff's bank, the National Bank of Delaware, the place of payment; and on the same day it was duly protested for nonpayment, notice of which the defendant had on the day and year last aforesaid. Since the argument upon the demurrer, we have considered the questions presented for our determination as carefully as we could in the midst of jury trials engaging our attention.

Counsel for the defendant contended that a promissory note, payable on demand, must be presented for payment by the holder within a reasonable time after the day of its date in order to charge an indorser, and pointed out that the declaration alleges that the plaintiff presented the said note for payment on the nineteenth day of February, 1906--twenty-seven months and eighteen days after the date of the note. It was urged that the presentment of the said note for payment and the notice of protest to the defendant, as alleged, were not made and given within a reasonable time, such as is necessary to make the indorser liable for the payment of the note.

It was insisted that whether the holder presented the note for payment within a reasonable time is a question of law for the court to decide on the face of the declaration, and that as no particular fact or circumstance was shown why the demand was not made sooner, so that the court might judge whether the demand was made within a reasonable time or not, the declaration was not sufficient in law for the plaintiff to have and maintain its aforesaid action thereof, against the defendant; and they cited numerous authorities in support of their contention, some of which are: Pyle v. M'Monagle, 2 Del. 468, 2 Harr. 468; Bank of Wil. and Brand. v. Cooper's Adm'r., 1 Del. 10, 1 Harr. 10; Bank v. Simmons, 1 Del. 331, 1 Harr. 331; Foley v. Emerald, etc., Brewing Co., 61 N.J.L. 428, 39 A. 650; Merritt v. Jackson, 181 Mass. 69, 62 N.E. 987; Wylie v. Cotter, 170 Mass. 356, 49 N.E. 746, 64 Am. St. Rep. 305; Keyes v. Fenstermaker, 24 Cal. 329; Martin v. Winslow, 2 Mason 241, Fed. Cas. No. 9,172; Turner, Rec'r., Etc., v. Iron Chief Min. Co. et al., 74 Wis. 355, 43 N.W. 149, 5 L. R. A. 533, 17 Am. St. Rep. 168; Home Savings Bank v. Hosie, 119 Mich. 116, 77 N.W. 625; Story on Prom. Notes, § 207, and note; Byles on Bills, § 163.

Counsel for the plaintiff conceded that, in order to bind an indorser of a promissory note payable on demand, presentment for payment must be made within a reasonable time after the day of its date, but he denied that the question of reasonable time is one of law for the court in every case. He contended that whether the question was one for the court, or for the jury, depends on the facts and circumstances of the particular case. He insisted that every material fact necessary to be averred to support an action on the note, sued upon, was contained in the plaintiff's declaration, and that it was unnecessary, and the plaintiff was not required, to plead facts and circumstances from which the question of reasonable time must be determined, whether it be determined by the court, or by the jury.

The following authorities were cited: Keyes v. Fenstermaker, 24 Cal. 329; Lockwood v. Crawford, 18 Conn. 361; Van Hoesen v. Van Alstyne, 3 Wend. (N.Y.) 75; Salmon v. Grovenor, 66 Barb. 160; Goodwin v. Davenport, 47 Me. 112, 74 Am. Dec. 478; Montelius v. Charles, 76 Ill. 303; Oley v. Miller, 74 Conn. 304, 50 A. 744; Jones v. Robinson, 11 Ark. 504, 54 Am. Dec. 212; Field v. Nickerson, 13 Mass. 131; Joyce on Defenses to Commercial Paper, § 508; Morgan v. U. S., 113 U.S. 476, 5 S.Ct. 588, 28 L.Ed. 1044; Rosenberg v. Continental Ins. Co., 23 Del. 174, 7 Penne. 174, 74 A. 1073; Norton v. Lewis, 2 Conn. 478; Whiteford v. Burckmyer, 1 Gill (Md.) 127, 143, 39 Am. Dec. 640; Blakely v. Grant, 6 Mass. 386; Duvall v. Bank, 9 Gill & J. 31; Levy v. Insurance Co., 10 W.Va. 560, 27 Am. Rep. 598; Bank v. Richardson, 5 Pick. 444; 4 Robinson Prac. 443.

Counsel for the defendant contended that any matter which the plaintiff might seek to prove at the trial as an excuse for delay in making the demand of payment and protest must be pleaded, and in support of their contention quoted from the case of Bank of Wil. and Brand. v. Cooper's Adm'r., 1 Harr. 10, as follows:

"Whenever a party is bound to allege any matter to be done by him to entitle him to an action, if he has any matter of excuse for not doing the act, he is bound to allege this matter of excuse, or he will not be permitted to give it in evidence, if it is objected to at the time. * * * But when this matter is intended to be relied on as an excuse, such matter should appear on the face of the declaration, or the plaintiff is not at liberty to prove it. As the plaintiff has not averred either a demand at the bank or any matter of excuse for not making such demand, but has relied in his declaration on a personal demand on O. Horsey, we consider that he is not at liberty under this declaration to prove any other species of demand or excuse than that which he has chosen to rely upon himself."

People's Bank v. Houston, 16 Del. 250, 2 Marv. 250, 43 A. 93, and Bank v. Simmons, 1 Del. 331, 1 Harr. 331, were also cited and relied upon.

In the case of Bank of Wilmington and Brandywine v. Cooper's Adm'r., supra, the action was brought by the plaintiff bank, the holder of the note, against the administrator of the payee, who was the indorser, deceased.

The declaration alleged a personal demand on the maker, instead of averring that a demand was made at the bank, the place of payment, and the question was whether under the allegation the plaintiff should be permitted to prove a demand essentially different from that alleged in the declaration. The plaintiff insisted that there were no funds at the bank at the time when the note became due; and that, therefore, it was excused for not presenting the note at the bank for payment. It was said by the court: "The engagement of the defendant in this case to the holder was that he would pay the amount of this note to him in case it was presented at the Bank of Wilmington and Brandywine, when it became due for payment, and a failure to pay it there, with due notice of nonpayment. The proof of these facts constitutes the liability of the defendant. The declaration should have averred that the note was presented at the bank for payment; that it was not paid, and that the indorser had notice of such demand and nonpayment. This is the form of declaring, as established by the books of precedents as far as we have looked into them. * * * Here, before the plaintiff could entitle himself to an action, he should have presented the note at the bank for payment; or, if he meant to excuse himself for not presenting it according to this legal obligation, he should set out the matter in his declaration, which he relies on as an excuse, that the court may judge of its sufficiency. * * *"

This case simply decides that, the plaintiff having failed to allege that a demand was made at the bank, evidence of such a demand, or of matter of excuse for not making it, could not be given under an allegation of demand on the maker personally.

The case of People's Bank v. Houston, supra, was similar, in that it was averred in the declaration that the notes sued upon were presented to the defendant for payment, and not to the bank, the place of payment. The defendant who had indorsed the notes was also payee therein. He had also over his signature made an indorsement, "Protest waived."

The plaintiff was not permitted to prove under the allegation in his declaration that the notes had been presented to the bank, the place of payment, at the time of their maturity, for the reason that proof of such a demand varied from the allegation of demand set forth in the declaration. Neither was he permitted to prove that the indorsement, "Protest waived," was signed by the defendant for the reason that any excuse for not presenting the notes for payment at the place designated by the maker should have been alleged in the declaration.

The case of Bank of Wilmington and Brandywine v. Simmons supra, was an action upon two promissory notes. There was a variance in the description...