S. S. Finger Mercantile Co. v. Adair

• Decision Date: 12 January 1931
• Docket Number: 29132
• Citation: 131 So. 875,159 Miss. 303
• Court: Mississippi Supreme Court
• Parties: S. S. FINGER MERCANTILE CO. v. ADAIR

131 So. 875

159 Miss. 303

S. S. FINGER MERCANTILE CO. v. ADAIR

No. 29132

Supreme Court of Mississippi

January 12, 1931

Division B

LIMITATION OF ACTIONS. Note containing promise to pay "on demand after date" held due and payable on day following date thereof, as regards limitation (Code 1930, section 2292).

A note reading: "On demand after date I, we, or either of us promise to pay S. S. F. Co. or bearer seventy dollars for value with interest at eight per cent after date until paid," is due and payable the day after its date, and suit may then be brought upon such note, and, if not brought within six years from such day, is barred by the statute of limitations.

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Tippah county, HON T. E. PEGRAM, Judge.

Action by the S. S. Finger Mercantile Company against L. D. Adair. Judgment was rendered for defendant in the justice court, and on appeal to the circuit court and plaintiff appealed. Affirmed.

Affirmed.

Fred B. Smith, of Ripley, for appellant.

While it is the generally recognized rule that a simple promise to pay on demand matures on the date of execution, so as to start immediately the running of the Statute of Limitations, still it is likewise the general holdings of the courts that anything in the contract or promise to pay indicating an intention of the parties that payment should be delayed until actual demand, will prevent the maturity of the instrument so as to start the running of the Statute of Limitations until there's an actual demand.

Knox v. Gye, 16 L. T. Rep. (N. S.) 76; 8 C. J. 406 and 407; Shapleigh Hardware Company v. Spiro, 141 Miss. 39; Brown v. Brown, 28 Minn. 501, 11 N.W. 64; Wennan v. Mohawk Ins. Co., 28 Am. Dec. 464.

It is the well founded rule applied in the construction of instruments, that the instrument will be construed, wherever possible so as to give meaning and effect to every word or expression of the instrument, rather than to make some portions of the instrument meaningless.

Merritt v. Todd, 23 N.Y. 28, 80 Am. Dec. 243; Yates v. Goodwin, 96 Me. 90, 51 A. 804.

It is not reasonable to suppose that parties who intended that a note be paid immediately, or the next day, would provide for attorney's fees. And it will be noted that it provides that the attorney's fees. And it will be noted that it provides that the attorney's fees shall be added if not paid when due. If the note was due immediately, then why provide for attorney's fees to be added, "if not paid when due."

B. N. Knox, of New Albany, for appellee.

The lower court held, and properly so, that the note herein sued on is a simple demand note. The general rule is that a simple demand note is matured at the date of its execution without actual demand for payment.

The only point at issue in this case is, does the note sued on come within the general rule and the reason upon which it was founded. If it does, then the lower court was correct in its ruling that proof of and the date of demand attempted to be testified to by Mr. Finger was immaterial and incompetent, and the plea of the statute of limitations would prevail. The directed verdict for the appellee was proper.

OPINION

Ethridge, P. J.

On the 25th day of October, 1920, L. D. Adair executed a note payable to S. S. Finger Mercantile Company, reading as follows:

"$ 70.00 Ripley, Miss., Oct. 25, 1920.

"On demand after date I, we, or either of us promise to pay to the order of S. S. Finger Merc., Co., or bearer seventy dollars for value received with interest at eight per cent, after date until paid. The drawers and endorsers severally waive presentation for payment, protest and notice of protest and nonpayment of this note. If not paid when due and is placed in the hands of an attorney it is agreed that ten per cent additional on amount due will be paid as attorney's fee.

"[Signed] L. D. ADAIR."

Suit was brought on the note on the 19th day of June, 1929, before a justice of the peace. In the justice court judgment was rendered for the defendant, and there was an appeal to the circuit court, where the Statute of Limitations (Code 1930 section 2292), was pleaded, and where the plaintiff sought to show by witness that no demand had...