Oley v. Miller

• Decision Date: 20 December 1901
• Citation: 50 A. 744,74 Conn. 304
• Court: Connecticut Supreme Court
• Parties: OLEY v. MILLER.

50 A. 744

74 Conn. 304

OLEY

v. MILLER.

Supreme Court of Errors of Connecticut.

Dec. 20, 1901.

Appeal from superior court, Fairfield county; Silas A. Robinson, Judge.

Action by S. Willard Oley against James E. Miller. From a judgment in favor of plaintiff, defendant appeals. No error.

The action was in two counts, each seeking recovery of the amount of a note in the following terms: "$900.00. Danbury, Ct., Aug. 20, 1896. On demand I promise to pay to S. Willard Oley nine hundred 00/100 dollars in gold, with interest quarterly. Value received. D. E. Rogers." The note bore the defendant's indorsement in blank. It was admitted or uncontradicted that the indorsement was made before delivery to the plaintiff, and for the accommodation of Rogers; that the defendant at the time of his indorsement took as collateral security therefor a note of another party, payable January 8, 1897, which Rogers held; that Rogers became insolvent in November, 1890; and that no demand was made by the plaintiff on Rogers for payment of the note until October 19, 1897, when, payment having been refused, notice thereof was immediately given to the defendant, and demand made upon him. Payment having been by him refused, suit was brought. The first count relied upon the execution, indorsement, delivery, presentment, demands, and notice aforesaid, together with the allegations that the presentment to Rogers was within a reasonable time, and that the note was unpaid. The second count, after reciting the facts attending the giving of the note, and the facts of the holding of collateral by the defendant, and Rogers' insolvency, as hereinbefore stated, alleged that on or about November 8, 1896, and at divers other times subsequently, the defendant requested the plaintiff to refrain from enforcing payment of said note from him as indorser until the collateral note he held became due and he might be able to collect it; that the defendant still held the collateral note; that the facts amounted to a waiver of demand upon Rogers; that notice of nonpayment had been given; and that the note sued upon was still due and unpaid. Upon the trial the plaintiff offered evidence to prove, and claimed to have proved, in addition to the facts hereinbefore stated to have been admitted or uncontradicted, that at the time of his taking the note in suit he knew that the defendant held said collateral; that it was understood between all three parties to the note that payment thereof would not be demanded before January 8, 1897; that the defendant upon sundry occasions beginning with November 7, 1896, and ending about the middle of September, 1897, requested the plaintiff to make no demand for the payment of the note, but to allow it to stand as a favor to tills defendant until the security held by him was paid; and that said security continued to be unpaid. The plaintiff offered evidence of other incidental facts bearing upon the conduct of the defendant in the premises during this period. The defendant's evidence was, upon many of these matters, in direct antagonism to that of the plaintiff, and especially so as to any requests for forbearance or delay.

Robert E. De Forest and George P. Carroll, for appellant.

Samuel Tweedy and Howard B. Scott, for appellee.

PRENTICE, J. (after stating the facts). This complaint erroneously contains two counts. There should have been but one. The two together state but one cause of action. Applying the usual test, we find that all the allegations of fact in the complaint, in so far as they are relevant at all, constitute only the statement of one claimed right and one claimed delict. Pom. Code Rem. §§ 455-457. The plaintiff's real claim is that by reason of the giving of the note as and under the circumstances alleged, and by reason of all the acts of the parties subsequent thereto recited in both counts, he is entitled to recover from the defendant indorser the amount due under the note. He interprets the indorser's original obligation, which is confessedly a conditional one of some sort, as one to pay the note if it should not be paid by the maker upon presentment and demand within a reasonable time. The fact of presentment and demand within such reasonable time, which is thus made a condition precedent to a right of recovery against the defendant in so far as he is concerned, the plaintiff claims to establish by the subordinate facts, and all of them, which are alleged in the two counts. All of these facts, in the manner in which they are presented, enter as elements into a determination of the question whether by virtue of a presentment and demand in October, 1897, the plaintiff has complied, as to the defendant, with the conditions involved in his undertaking. The allegations of the second count are claimed therein as amounting to a waiver of presentment. In so far as they support that conclusion of law, they perforce enter into a determination of the question of whether, in spite of the delay in presentment until October, it was, when made, within a reasonable time, under the terms of the indorser's alleged undertaking; and they have no other real, ultimate effect. Waiver, through requests for forbearance, is but the name for a subordinate factor in the larger or final question of reasonableness of presentation. Whatever view be taken as to the standpoint from which the fact of reasonable time for presentation is to be determined, it is clear that the requests of the indorser, influencing the action of the holder, cannot be disregarded. Even though the reasonable time be, as the defendant claims, that contemplated by the parties, or presumed to have been contemplated by them, when the contract is entered into, yet it is still competent for the parties in interest to modify the contract as in contemplation originally made. So when an indorser asks of the holder forbearance, or assents to it, and it is given, this transaction, which might be narrowly called a "waiver," relates back, in contemplation of law, to the original contract to change it A note presented in accordance with the request or assent of the indorser is, as to him, presented in a reasonable time. Lockwood v. Crawford, 18 Conn. 361; Clark v. Merriam, 25 Conn. 576. The situation thus disclosed is precisely that which existed in Brown v. Wilcox, 73 Conn. 100, 46 Atl. 827; and the results are in like manner unfortunate in developing complications, as is not unlikely to be the case where causes of action are split. In that case this court regarded as done what ought to have been done, and treated two counts as one. The reasons which impelled to that course of action are of equal force in this case. By doing likewise, as we properly may, since a general verdict was rendered, certain of the complications in the case disappear, and the solution of its problems presented to us is made more simple.

The defendant's first contention is that he cannot be liable, for the reason that presentment and demand were not made upon the maker within four months after date. Ho claims that section 1859 of the General Statutes applies, although its provisions are by express language limited to negotiable promissory notes, which the note in question is not. His argument involves the history of the statute. It first appears in 1865 in its present limited form, for which the reasons are obvious. Pub. Acts 1805, c. 103. In 1884 it was enacted that the blank indorsement of a negotiable or nonnegotiable note by a person who was neither its maker nor payee should import the contract of an ordinary indorsement of negotiable paper, as between such indorser and the payee or subsequent holders. Pub. Acts 1884, c. 83. The argument is that this act of 1884 operated, as of necessity, to remove the limitation to negotiable paper contained in the act of 1865, and continued in the revision of 1875. The appearance of the...