tiable Instruments Act does not change the rule which existed prior to the adoption of such act, that where the time of payment of a note is not ascertainable, the note is nonnegotiable.24

At common law and under the Uniform Negotiable Instruments Act, a note is payable on demand, where no time is specified for its payment, and is negotiable,25 unless the circumstances connected with it show that the maturity of the note is contingent.26 So a note secured by collateral is negotiable, as against the objection that it is payable upon a contingency, where it contained a provision giving the payee "the right to call for additional security should the same decline, and on failure to respond, this obligation shall be deemed to be due and payable on demand."27 But an instrument in the form of a note which provides that the holder may retain title to the property for which the note is given and upon a feeling of insecurity declare the note due, and reclaim possession of the property, is not a negotiable instrument. 28 However, a check which is post dated and made payable on or after such date is negotiable;29 and a note is valid and enforceable, although made payable at a specified time. after the death of the maker;30 and negotiability is not destroyed by the fact that the note is made payable a certain time after the death of a named person.31 So a note payable "on or before" a certain date is negotiable,32 as is a certificate of deposit payable at a "fixed or determinable future time"; and the fact that a certificate of deposit is subject to the rules of the savings department of the bank does not render it nonnegotiable.33

But a note to be "paid when we get it from the brewery after date", is not negotiable, as not being payable within a definite fu

quarterly during the fourth year. Bea-
man v. Gerrish, 235 Mass. 79, 126 N.
E. 352.

24 Wayne County Nat. Bank V.
Cook, 73 Ind. App. 404, 127 N. E. 773.

25 Keister v. Wade, 191 App. Div. 870, 182 N. Y. S. 119, revd. in 109 Misc: 313, 179 N. Y. S. 609.

26 Nesbitt v. Hudson (Tex. Civ. App.), 230 S. W. 746.

27 Mechanics &c. Nat. Bank v. Warner, 145 La. 1022, 83 So. 228.

28 Moyer v. Hyde, 35 Idaho 161, 204 Pac. 1068.

29 Wilson v. McEachern, 9 Ga. App. 584, 71 S. E. 946.

30 In re Conger's Estate, 113 Misc. 129, 184 N. Y. S. 74.

31 McClenathan v. Davis, 149 Ill. App. 654, affd. in 243 Ill. 87, 90 N. E. 265, 27 L. R. A. (N. S.) 1017.

32 Lovenberg v. Henry, 104 Tex. 550, 140 S. W. 1079; Henry v. Lovenberg (Tex. Civ. App.), 128 S. W. 675. 33 White v. Wadhams, 204 Mich. 381, 170 N. W. 60.

ture time;34 and again, a note to become due at a time in the future, which is not yet determined is not so indefinite as to time as to render the note nonnegotiable.35 But negotiability is held to be destroyed where an order is made payable after completion of the construction of a railroad, as the road might never be completed.30 A note containing a power of attorney to confess judgment "at any time thereafter" with "consent to immediate execution", is nonnegotiable because of uncertainty as to the time of payment.37 If, however, the power to confess judgment can only be exercised after the note becomes due, it does not render the note nonnegotiable.38 But any provision in an instrument which makes it payable on a contingency renders the note nonnegotiable and subject to defenses.39 And in order to render a note nonnegotiable, the contingency must appear from the note itself or from a contemporaneous memorandum written upon the note;40 and payment of a note is not a contingency within the meaning of the statute, as payment is deemed certain to be made.41 So, where an instrument is made payable one year after the maker becomes the owner of certain lands conveyed to him by his father, in which the latter retains a life estate, it is held negotiable, as the maker is certain to become the absolute owner of the land upon the death of the father.42

The courts are not in entire agreement as to the effect on a note of an accelerating clause making the note payable at the option of the payee, on failure to pay an installment of interest when due; or in case of a series of notes, on failure to pay one of

34 Wray v. Miller (App. Div.), 120 N. Y. S. 787.

35 State Bank of Halstead v. Bilstad (Iowa), 136 N. W. 204.

36 Illinois Midland Ry. Co. v. Farmers State Bank, 200 Ill. App. 591.

37 First Nat. Bank of Elgin v. Russell, 124 Tenn. 618, 139 S. W. 734, Ann Cas. 1913A, 203; Clark v. Tailmadge, 171 Wis. 133, 176 N. W. 906. A negotiable instrument is not due until it becomes payable in accordance with its terms. Edelen v. First Nat. Bank, 139 Md. 422, 115 Atl. 602.

38 Green v. Dick, 72 Pa. Super. Ct. 266.

39 Klots Throwing Co. v. Manufacturers Commercial Co., 179 Fed. 813, 30 L. R. A. (N. S.) 40; Neyens v. Port, 46 Pa. Super Ct. 428, 433, 434; Iowa Nat. Bank v. Carter, 144 Iowa 715, 123 N. W. 237.

40 Bavarian Brewing Co. v. Retkowski (Del. Super.), 113 Atl. 903.

41 Arnett v. Clack, 22 Ariz. 409, 198 Pac. 127.

42 McClenathan v. Davis, 243 I11. 87, 90 N. E. 265, 27 L. R. A. (N. S.)

the series when it becomes due. The majority of the courts hold that such a clause does not render the note or notes nonnegotiable because of uncertainty as to time of payment.* On the other hand, it is held in some jurisdictions that an instrument is rendered nonnegotiable because of uncertainty as to time of payment, by the insertion of a provision accelerating the time of payment on the happening of a contingency;44 as default in payment of interest,45 or for failure to pay taxes, or by a provision that if the holder of the note is of opinion that the collateral securing the note has depreciated in value,46 or by a provision that if the holder deems himself insecure the note becomes payable on demand at his option;47 or by a provision in a mortgage securing the note, that the mortgagee can declare the debt due, whether or not the mortgagor is in default.48 But where the accelerating clause is contained in a mortgage securing payment of a note, it does not render the note nonnegotiable, unless the note makes reference to such provision.49 However, where a mortgage securing a note gives the maker the right to pay it before maturity its negotiability is destroyed.50

43 See also Ch. 15. Gillette V. Hodge, 170 Fed. 313; Smith v. Nelson Land & Cattle Co., 212 Fed. 56; Kobey v. Hoffman, 229 Fed. 486; Glenn v. Rice, 174 Cal. 269, 162 Pac. 1020; Utah State Nat. Bank v. Smith, 180 Cal. 1, 179 Pac. 160; Taylor v. American Nat. Bank, 63 Fla. 631, 57 So. 678, Ann. Cas. 1914A, 309; First Nat. Bank v. Garland, 160 Ill. App. 407; State Bank v. Bilstad (Iowa), 136 N. W. 204; Des Moines Sav. Bank v. Arthur, 163 Iowa 205, 143 N. W. 556, Ann. Cas. 1916C, 498; Commercial Sav. Bank v. Schaffer, 190 Iowa 1088, 181 N. W. 492; Schmidt v. Pegg, 172 Mich. 159, 137 N. W. 524; Strickland v. National Salt Co., 77 N. J. Eq. 328, 76 Atl. 1048; Mackintosh v. Gibbs, 79 N. J. L. 40, 74 Atl. 708; Mackintosh v. Gibbs, 81 N. J. L. 577, 80 Atl. 554, Ann. Cas. 1912D, 163; Westlake v. Cooper, 69 Okla., 171 Pac. 859, L. R. A. 1918D, 522; White v. Hatcher, 135 Tenn. 609, 188 S. W. 61; Bright v. Offield, 81 Wash. 442, 143 Pac. 159.

44 Bright v. Offield, 81 Wash. 442, 143 Pac. 159; Mathews v. Wilson, 38 Cal. App. 148, 175 Pac. 647; Wetzel v. Cale, 175 Cal. 208, 165 Pac. 692.

45 Boyd v. Bearce, 48 Cal. App. 46, 191 Pac. 560; Bell v. Riggs, 34 Okla. 834, 127 Pac. 427, 41 L. R. A. (N. S.) 1111; Goss v. Sorrell, 33 Okla. 585, 127 Pac. 435.

46 Holliday State Bank v. Hoffman, 85 Kans. 71, 116 Pac. 239, 35 L. R. A. (N. S.) 390, Ann Cas. 1912D, 1.

47 Reynolds v. Vint, 73 Ore. 528, 144 Pac. 526; Puget Sound State Bank v. Washington Paving Co., 94 Wash. 504, 162 Pac. 870; Peoples Bank v. Porter (Cal. App.), 208 Pac. 200.

48 Des Moines Sav. Bank v. Arthur, 163 Iowa 205, 143 N. W. 556, Ann. Cas. 1916C, 498.

49 Birken v. Hickey, 42 S. Dak. 472, 176 N. W. 137.

50 Pierce v. Talbot, 213 Mass. 330, 100 N. E. 553; Fisher v. O'Hanlon, 93 Nebr. 529, 141 N. W. 157, L. R. A. 1918C, 727.

At common law, law, a provision in the note for extention of time of payment without notice rendered the instrument nonnegotiable.51 But, under the Negotiable Instruments Act, it has been almost uniformly held that the presence of a provision in a note for extension of time of payment does not render it nonnegotiable, because of uncertainty as to time of payment.52 So, it has been held that a provision in a note "that after maturity this note may be extended from time to time by any one or more of us, without the knowledge or consent of any of the others of us," did not destroy its negotiability.53 But in Indiana, it is held under the Negotiable Instruments Law, that where a note contains a provision that "the time of payment may be extended from time to time by any one or more of us without even the knowledge or consent of the other or others of us", it rendered the note nonnegotiable.54 So under the Indiana statute a note providing for its renewal from time to time at the maker's option upon payment of ten per cent of the original amount is nonnegotiable;55 and in Iowa it is held that, even under the Negotiable Instruments Act, a note providing for the extension of time of payment by consent of all the parties

51 Davis v. McColl, 179 Mo. App. 198, 166 S. W. 1113. Where the payee indorsed his consent for the extension of time of payment on the back of the note, it was held not to affect its negotiability. Cooper Gro. Co. v. H. T. Hamrick Co. (Tex. Civ. App.), 229 S. W. 356. Nor is negotiability of a note affected by an indorsement on the note by the payee, under agreement with a third person, of a promise to extend the time of payment. Hanssen v. Pusey & Jones Co., 276 Fed. 296; Pusey & Jones Co. v. Hanssen, 279 Fed. 488.

52 Smith v. Nelson Land &c. Co., 212 Fed. 56; Longmont Nat. Bank v. Loukonen, 53 Colo. 489, 127, Pac. 947, Ann. Cas. 1914B, 208; Stitzel v. Miller, 250 Ill. 72, 95 N. E. 53, 34 L. R. A. (N. S.) 1004, Ann. Cas. 1912B, 412; Davis v. McColl, 179 Mo. App. 198, 166 S. W. 113; First Nat. Bank v. Stover, 21 N. Mex. 453, 155 Pac. 905, L. R. A. 1916D, 1280, Ann. Cas. 1918B, 145; Bank of

Whitehouse v. White, 136 Tenn. 634, 191 S. W. 332.

53 Navajo County Bank v. Dolson, 163 Cal. 485, 126 Pac. 153, 41 L. R. A. (N. S.) 787.

54 Wayne County Nat. Bank V. Cook, 73 Ind. App. 404, 127 N. E. 773. A provision in a note that "Any person signing or writing his name hereon as surety, indorser or guarantor by so doing expressly consents that the time of payment thereof may be extended from time to time without any rights being released or waived", was held not to be equivalent to the clause that "payment may be extended by the payee or any subsequent holder of the note", and it does not render the note nonnegotiable. American Bank &c. Co. v. Ragsdale, 74 Ind. App. 367, 129 N. E. 59.

55 National City Bank v. Kirk (Ind. App.), 134 N. E. 772.

is nonnegotiable;56 and in the same state it is held that a note which contains a clause waiving demand, notice and protest and an agreement for extension without notice, is nonnegotiable.57 However, the fact that a bill or check is post dated does not render it nonnegotiable. 58 A note which is susceptible of the reasonable construction that it is to be paid within a reasonable time is held not rendered nonnegotiable because of uncertainty as to time of payment.59 So, where a note is made payable a year after date, or as soon as a certain estate is settled, it matures one year after date, or earlier if the estate is settled before the expiration of the year, and is not nonnegotiable because of uncertainty as to time. 60

§ 10. Place of payment."1-Prior to the Uniform Negotiable Instruments Act, there were statutory provisions in some of the states requiring notes, in order to be negotiable, to be made payable at a certain place,62 and in some states they were required to be payable "at" or "in" a bank of the state where executed in order to be negotiable. But the Negotiable Instruments Law provides that the negotiability of an instrument is not affected by omission to "specify the place where it is drawn or the place where it is payable.'

9164

56 Cedar Rapids Nat. Bank v. Weber, 180 Iowa 966, 164 N. W. 233, L. R. A. 1918A, 432; Quinn v. Bane, 182 Iowa 843, 164 N. W. 788; Farmers Nat. Bank v. Stanton, 191 Iowa 433, 182 N. W. 647, 17 A. L. R. 857.

57 Security Sav. Bank v. Capp, 193 Iowa 278, 186 N. W. 927.

58 Triphonoff v. Sweeney, 65 Ore. 299, 130 Pac. 979.

59 Dille v. Longwell, 188 Iowa 606, 176 N. W. 619; Naftzger v. Buser, 105 Kans. 115, 186 Pac. 997.

60 Crawford v. Hunt, 25 Ga. App. 210, 102 S. E. 834.

61 See also Ch. 15.

62 Burns Ann. Stat. 1914, § 9076; Holloway v. Darden, 168 Ala. 256, 53 So. 187; Hardy v. Brier, 91 Ind. 91; Young v. Baker, 29 Ind. App. 130, 64 N. E. 54; DePauw v. Bank, 126 Ind.

553, 25 N. E. 705, 26 N. E. 151, 10 L. R. A. 46.

63 Millikan v. Security Trust Co., 187 Ind. 307, 118 N. E. 568; Kuhn v. National City Bank, 187 Ind. 726, 119 N. E. 145; Halstead v. Woods, 48 Ind. App. 127, 95 N. E. 429;; Krieg v. Palmer Nat. Bank, 51 Ind. App. 34, 95 N. E. 613; Farmers &c. Mut. Life Assn. v. Mason, 65 Ind. App. 66, 116 N. E. 852; Hubbard v. First State Bank, 67 Ind. App. 47, 114 N. E. 642; Dotson v. Owsley, 141 Ky. 452, 132 S. W. 1037.

64 Negot. Inst. Act, art. "Form and Interpretation," § 6. The presumption that a note is to be payable in the place where dated may be removed by parol proof to the contrary. Beadall v. Moore, 199 App. Div. 531, 191 N. Y. S. 826.