Roberts v. Wold

• Decision Date: 07 June 1895
• Docket Number: 9303--(115)
• Citation: 63 N.W. 739,61 Minn. 291
• Parties: J. E. ROBERTS v. O. K. WOLD
• Court: Minnesota Supreme Court

63 N.W. 739

61 Minn. 291

J. E. ROBERTS v. O. K. WOLD

Nos. 9303--(115)

Supreme Court of Minnesota

June 7, 1895

Appeal by defendant from an order of the district court for Houston county, Whytock, J., denying a motion to set aside a verdict in favor of plaintiff for $ 341.75, directed by the court and for a new trial. Affirmed.

Order affirmed.

E. H Smalley, for appellant.

W. R Duxbury, for respondent.

OPINION

MITCHELL, J.

Action against defendant, as indorser of a promissory note executed by one Peters, and payable at Britton, D. T. The only questions worthy of any special consideration relate to the steps taken at the maturity of the note to hold the defendant liable as indorser, viz.: (1) What was the last day of grace on the paper? and (2) should the court have submitted to the jury the question whether notice to the defendant of the dishonor of the note was deposited in the post office at Britton?

The note was executed and payable in Dakota territory, and on its face was payable October 20, 1889, which was Sunday. The note was protested for nonpayment on Wednesday, the 23d, whereas defendant claims that by the laws of the territory the last day of grace was on Thursday, the 24th. His contention is that, according to section 4492, Comp. Laws Dak. 1887, the day of apparent maturity of this note was Monday, October 21, and therefore, under section 4524 of the same Code, the maker was entitled to three days' grace thereafter. We are not referred to any decisions of the courts of Dakota territory or of the state of South Dakota construing these sections, but we are satisfied that defendant's contention is based upon a misapprehension of their meaning.

According to the law merchant, if a bill or note, without grace, fell due on a legal holiday, it was not payable until the next day. Section 4492 of the Code above cited is merely declaratory of this rule. But where the bill or note was entitled to grace the rule was exactly the opposite. Inasmuch as by the rules of the law merchant the debtor could not require the creditor to extend indulgence beyond three calendar days, therefore, when the last day of grace fell on a legal holiday, the bill or note would fall due the day preceding. Also if either the first or second day of grace was a legal holiday, it was nevertheless counted as one of the days of grace. The only change in this regard made by the Code of Dakota is to exclude legal holidays...