Sheffield v. Cleland

• Citation: 19 Idaho 612,115 P. 20
• Parties: CURTIS H. SHEFFIELD, Respondent, v. WILLIAM H. CLELAND, Appellant
• Decision Date: 30 March 1911
• Court: United States State Supreme Court of Idaho

115 P. 20

19 Idaho 612

CURTIS H. SHEFFIELD, Respondent, v. WILLIAM H. CLELAND, Appellant

Supreme Court of Idaho

March 30, 1911

PROMISSORY NOTE-INDORSER-DEMAND FOR PAYMENT-ADMISSION AND REJECTION OF EVIDENCE-INSTRUCTIONS.

(Syllabus by the court.)

1. Held, that the court did not err in the admission and rejection of certain evidence.

2. As a general rule, the question of what is a reasonable time in which to present for payment a promissory note which was indorsed after maturity is one of fact to be determined by the circumstances of each particular case.

3. A promissory note introduced in the trial of an action, brought thereon, is prima facie evidence that the debt evidenced thereby is unpaid.

4. Held, that there was sufficient evidence to make a prima facie case and that the court did not err in denying a motion for a nonsuit.

5. Held, that the court did not err in giving certain instructions.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robt. N. Dunn, Judge.

Action on promissory note. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

McBee &amp LaVeine, for Appellant.

The question as to what is a reasonable or unreasonable time is a question of law, to be determined by the court from the evidence. (Turner v. Iron Chief Min. Co., 74 Wis 335, 17 Am. St. 168, 43 N.W. 149, 5 L. R. A. 533; Nash v Harrington, 2 Vt. 9, 16 Am. Dec. 672; Jones v. Robinson, 11 Ark. 504, 54 Am. Dec. 212.)

A delay of ten months after indorsement to present and give notice of nonpayment of a note payable on demand with interest is so unreasonable that it will discharge the indorser. (Leonard v. Olson, 99 Iowa 162, 61 Am. St. 230, 68 N.W. 677, 35 L. R. A. 381; Daniel on Negotiable Instruments, pars. 604-611; Bassenhorst v. Wilby, 45 Ohio St. 333, 13 N.E. 75.)

C. H. Potts, for Respondent.

The rule has been laid down generally that what is a reasonable time within which to present a note, which was indorsed after maturity, for payment, is a question of fact to be determined on the circumstances of each particular case by the jury. (Union Bank v. Ezell, 10 Humph. (Tenn.) 386; Gray v. Bell, 3 Rich. (S. C.) 71; Pryor v. Bowman, 38 Iowa 92.)

"The possession by the creditor of a writing providing for the payment of money after maturity is prima facie evidence that the debt evidenced thereby is unpaid." (30 Cyc. 1268, and cases cited.)

The introduction of the unpaid note by plaintiff was sufficient evidence, if evidence was necessary, in support of his negative allegation of nonpayment. (Pastene v. Pardini, 135 Cal. 431, 67 P. 681, 682; Brennan v. Brennan, 122 Cal. 440, 68 Am. St. 46, 55 P. 124; Turner v. Turner, 79 Cal. 565, 21 P. 959, 960.)

Where there is substantial conflict in the evidence, a judgment entered on the verdict of a jury will not be reversed. (Martin v. Dowd, 8 Idaho 453, 69 P. 276; Pine v. Callahan, 8 Idaho 684, 71 P. 473, and other Idaho cases.)

Demand for payment of commercial paper indorsed and transferred after maturity and notice of its dishonor to the indorser need not as a legal conclusion be made at any precise time; it is sufficient that it is made within a reasonable time with reference to the facts of the particular case. (Bank v. Gaffney, 9 Ala. 153; Jones v. Robinson, 11 Ark. 504, 54 Am. Dec. 212.)

A demand for the payment of the note before the time at which the parties and the indorser had agreed upon between themselves is within a reasonable time. (Lockwood v. Crawford, 18 Conn. 361.)

SULLIVAN, J. Ailshie, Presiding J., and Woods, District Judge, concur.

OPINION

SULLIVAN, J.

This action was brought by respondent against the appellant as indorser of a certain promissory note executed by one McBee.

It is alleged in the complaint that on the 10th day of December, 1903, one McBee, for value received, made, executed and delivered a promissory note for the sum of $ 100, with interest thereon at the rate of eight per cent, to the appellant, William H. Cleland; that sometime after the maturity thereof, for a valuable consideration, said Cleland indorsed said promissory note and sold and assigned the same to the plaintiff, and the plaintiff is the lawful holder and owner thereof; that due notice of the sale and assignment of the note was given to the maker; that thereafter said promissory note was presented to the maker for payment and payment was refused, and that appellant had due notice thereof; that neither the indorser nor the maker has paid said note or any part thereof, and that said sum of $ 100 with interest thereon at the rate of eight per cent from the 1st day of April, 1903, is due and payable; that said note provides for an attorney's fee in case suit is instituted to collect the same. Plaintiff prays for judgment in the sum of $ 100 and eight per cent interest, together with the further sum of $ 25 attorney's fee.

A demurrer was interposed to said complaint and overruled by the court, and an answer was filed which denies that due notice or any notice of any sale or assignment of said promissory note was ever given to the maker; denies that said promissory note was indorsed by the defendant; denies that payment thereof was demanded or refused; denies that defendant had due or any notice of any presentation thereof or demand for payment or refusal of payment by the said maker; denies that said note or any part thereof remains unpaid; denies that the sum of $ 25 or any sum is a reasonable attorney's fee for the collection of said note.

Upon the issues thus made the cause was tried by the court with a jury, and the jury returned a verdict in favor of the plaintiff and assessed his damages at the sum of $ 176.65, and judgment was entered for that sum and costs of suit. A motion for a new trial was overruled, and the appeal is from the judgment and the order denying a new trial.

The first, second and third assignments of error relate to the action of the court in overruling appellant's objections to questions propounded to the respondent as to what transpired at the time the note was indorsed by appellant to the respondent. The note was indorsed after maturity, and the liability of the defendant depended upon the law governing such indorsements. Among other things, it was necessary to determine what was a reasonable time in which to present the note to the maker. Under our statutes this should be determined in connection with the facts of the particular case. It is provided by sec. 3650, Rev. Codes, as follows:

"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."

The facts of this case could be disclosed only by evidence as to what was said and done at the time of the indorsement, and the answers given to the questions complained of show the materiality of the testimony sought to be elicited thereby, as shedding light on the transaction which would aid the jury in determining what was a reasonable time under the circumstances. While the liability of the indorser of a note is fixed by law, the question of what is a reasonable time to present the note to the maker for payment, when it is indorsed after maturity, is not fixed by law, but depends upon the facts of the case and the understanding and agreement of the parties. The court did not err in admitting the evidence referred to.

The fourth and fifth assignments of error relate to...