54 them to be bound jointly and not severally. If no such agreement is shown such indorsers are not cosureties and there can be no right of contribution among them.55 54. Rebuttal of legal effect of successive accommodation indorsements. - In the case of Farwell v. Ensign, 66 Mich. 600, 33 N. W. 736, it was held that where there are several indorsers of a bill or note, the legal effect of their successive indorsements is to make them liable to each other in the order of time in which they sign their names; but this legal effect may be rebutted by parol proof that all the indorsers were accommodation indorsers, and, by agreement among themselves, cosureties. And see Hawley v. McCredy, 54 Cal. 388; Talcott v. Cogswell, 3 Day (Conn.), 522. But the fact that the indorsements on a renewal note are not in the same order as the indorsements on the original notes does not raise the presumption that the obligation of the in dorsers on the renewal notes is joint, and not several, as the holder could insist on such change as a condition of the renewal. Palmer v. Field, 76 Hun (N. Y.), 229, 27 N. Y. Supp. 736. Proof of agreement by parol is permitted. Rhodes v. Sherrod, 9 Ala. 63; Weston V. Chamberlain, 7 Cush. (Mass.) 404; Clapp v. Rice, 13 Gray (Mass.), 403, 74 Am. Dec. 639; Paul v. Rider, 58 N. H. 119; Ross v. Espy, 66 Pa. St. 481, 5 Am. Rep. 394. 55. Moody v. Findley, 43 Ala. 167; Dunn v. Sparks, 7 Ind. 490; Clapp v. Rice, 13 Gray (Mass.), 403, 74 Am. Dec. 639; Farwell v. Ensign, 66 Mich. 600, 33 N. W. 736; Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109; Aiken v. Barkley, 2 Spears (S. C.), 748, 42 Am. Dec. 397. CHAPTER VIII. Presentment for Payment. § 90. Necessity for Presentment for Payment. b. Presentment unnecessary to charge principal debtor. 91. When Presentment Must be Made. a. Statutory provision. b. Presentment where instrument is not payable on demand. § 92. What Constitutes a Sufficient Presentment. b. By whom made. c. Presentment at reasonable hour. d. Place of presentment. e. To whom made. § 93. Proper Place of Presentment. a. Statutory provision. b. Where place of payment is specified. c. Where place of payment is not specified, but address of person is given. d. Where place of payment or address is not specified. § 94. Instrument Must be Exhibited. § 95. Presentment where Instrument is Payable at a Bank. a. Statutory provision. b. Presentment at bank generally. c. Presentment during business hours. § 96. Presentment where Principal Debtor is Dead. § 97. Presentment to Persons Liable as Partners. a. Statutory provision. b. General rule. § 98. Presentment to Joint Debtors. a. Statutory provision. § 99. When Presentment not Required to Charge Drawer or Indorser. a. When not required to charge drawer; statutory provision. b. When not required to charge indorser. § 100. When Delay in Making Presentment is Excused. a. Statutory provision. b. Circumstances causing delay. § 101. When Presentment May be Dispensed With. a. Statutory provision. b. Exercise of reasonable diligence. c. Insolvency of principal debtor. § 102. Instrument Dishonored by Nonpayment. a. Statutory provision. b. Liability of person secondarily liable. $103. Time of Maturity. a. Statutory provision. b. General rule as to instruments payable on Sunday or a holiday. c. Instruments payable on Saturday. § 104. Days of Grace. a. Statutory provision. b. When allowed. § 105. Time; how Computed. a. Statutory provision. b. General rule. $106. Effect of Instrument Payable at a Bank. a. Statutory provision. b. Effect of statute; general rule. 107. What Constitutes Payment in Due Course. § 90. Necessity for presentment for payment. a. Statutory provision.- The Negotiable Instruments Law provides that: "Presentment for payment is not necessary in order "to charge the person primarily on the instrument; but if the "instrument is, by its terms, payable at a special place, and he is "able and willing to pay it there at maturity, and has funds "there available for that purpose, such ability and willingness are equivalent to a tender of payment upon his part. "But except as herein otherwise provided, presentment for pay"ment is necessary in order to charge the drawer and in "dorsers." 56 The words " and has funds there available for that purpose," as contained in the above section, were inserted therein. by an amendment made to the New York act in 1898.57 The statutes in the other States which have adopted the law is the same as this section, except for the insertion of these words.58 It is suggested by Mr. Crawford, who is credited with having drafted the Negotiable Instruments Law, that the words inserted in the New York act are clearly superfluous. He says they impose a condition not deemed necessary by the courts. "If, for example, the 'special place' where the paper is payable is the office of the maker or acceptor, this provision requires that he have the funds there, and it would be enough if he have them in bank. The interpolation is not only at variance with the decisions on the subject, but is contrary to the good sense and to the practice of the business world." In our opinion, the criticism made by Mr. Crawford is unwarranted. It seems to us that the insertion of the words makes clear the probable intent of the framer of the act. It may be admitted that if a maker or acceptor is compelled to pay at a "special place," as specified in the instrument, that it is to be presumed that funds are at that place available for the purpose. But this is by no means conclusive. To constitute a tender of payment, it would seem that something more than ability and willingness is required. There must be the available funds at the "special place" to meet the demand. It seems that while the words might not have been absolutely essential, that they have a purpose in making clear what, upon its face, is an ambiguous statement. b. Presentment unnecessary to charge principal debtor.— The rule of the statute that presentment for payment is not necessary in order to charge the person primarily liable on the instrument is declaratory of the common law.59 And the rule has been 60 held applicable, although the maker has made the note for the accommodation of the payee, and this is known to the holder." No presentment at the place named is necessary to give a right 56. Neg. Inst. L. (N. Y.), § 130. For same section in statutes of other States see Appendix. 57. See L. 1898, chap. 336. 58. In the Wisconsin act all of the first sentence after the first clause is omitted. 59. Bush v. Gilmore, 45 App. Div. (N. Y.) 89, 61 N. Y. Supp. 682; Howard v. Boorman, 17 Wis. 459; 658. 60. Hansborough v. Gray, 3 Gratt. (Va.) 340; Torry v. Foss, 40 Me. 74; Marion Nat. Bank v. Phillips (Ky.), 35 S. W. 910; American Nat. Bank v. Junk Bros., etc., Co., 94 Tenn. 624, 30 S. W. 753, 28 L. R. A. 492. of recovery against the maker of a promissory note. The only effect of an omission to make such a presentment is to relieve the maker from damages in case he was ready at the time and place appointed to pay it, if there was no one there to receive the money. Such readiness is considered equivalent to a tender of the sum payable, and an answer pleading that fact and a payment of the money due into court would be a bar to a recovery of interest and costs, but not to the cause of action.o1 In an action on a promissory note against the maker or on a bill of exchange against the acceptor, where the note or bill is made payable at a specified time and place, it is not necessary to allege or to prove that a demand of payment was made in order to maintain the action.62 61. Hill v. Place, 48 N. Y. 520, 8 Am. Rep. 568, citing Wolcott v. Van Santvoord, 17 Johns. (N. Y.) 248; Caldwell v. Cassidy, 8 Cow. (N. Y.) 271. This rule has been modified in some of the States by statute, as in Maine, where it is provided that a demand for payment shall be made as a prerequisite to the maintenance of a suit for a note payable at a place certain. Greenlief v. Watson, 83 Me. 266, 22 Atl. 165; Veazie Bank v. Winn, 40 Me. 62. But the general rule is that stated in the first New York case above cited. See Roberts v. Mason, 1 Ala. 373; Pritchard v. Smith, 77 Ga. 463; Bradford v. Cooper, 1 La. Ann. 325; Folger v. Chase, 18 Pick. (Mass.) 63; Middleton v. Boston, etc., Works, 26 Pa. St. 257. 62. Necessity of presentment and demand. The following cases may be cited as relating to this subject: United States.- Brabston v. Gibson, 9 How. 263; Wallace v. McConnell, 13 Pet. 136; Sulver v. Hunterson, Fed. Cas. No. 12,854, 3 McLean, 165; Thompson v. Cook, Fed. Cas. No. 13,952, 2 McLean, 122. Alabama.- Clark v. Moses, 50 Ala. 326; Montgomery v. Elliott, 6 Ala. Indiana.- McCullough v. Cook, 34 Ind. 290; Eaton R. R. Co. v. Hunt, 20 Ind. 457. Iowa.- Jurgensen v. Carisen, 97 Iowa, 627, 66 N. W. 877; Callanan v. Williams, 71 Iowa, 363, 32 N. W. 383. Kentucky.- Baker v. Phelps, 12 Ky. L. Rep. 387. Maine.- Peterson v. Vose, 43 Me. 552; Dockray v. Dunn, 37 Me. 442. Massachusetts.- Carter v. Smith, 9 Cush. 321; Berkshire Bank v. Jones, 6 Mass. 524, 4 Am. Dec. 175. Michigan.― McIntyre v. Michigan State Ins. Co., 52 Mich. 188, 17 N. W. 781; Reeve v. Pack, 6 Mich. 240. Minnesota.- Balme v. Wambaugh, 16 Minn. 116. Nebraska.- Morlong v. Bronson, 37 Neb. 608, 56 N. W. 205. New Hampshire.-Bingham v. Smith, 16 N. H. 274; Eastman v. Fifield, 3 N. H. 333, 14 Am. Dec. 371. New Jersey. Weed v. Van Houten, 9 N. J. L. 189, 17 Am. Dec. 468. New York.- Hills v. Place, 48 N. Y. 520, 8 Am. Rep. 568; Genesee College v. Dodge, 26 N. Y. 213: Haxtun v. Bishop, 3 Wend. 13; Caldwell v. Cassidy, 8 Cow. 271: Herring v. Sanger, 3 Johns. Cas. 71; Finch v. Skilton, 79 Hun, 531, 29 N. Y. Supp. 925. North Carolina.- Nichols v. Pool, 47 N. C. 25. Ohio.- Conn v. Gans, 1 Ohio, 483, 13 Am. Dec. 639. Pennsylvania.-West Branch Bank v. Fulmer, 3 Pa. St. 399, 45 Am. Dec. 651; Nosser v. Criswell, 150 Pa. St. 409, 24 Atl. 618. Texas.- Deel v. Berry, 21 Tex. 463, 73 Am. Dec. 236. Vermont. Hart v. Green, 8 Vt. 191. |