Romaine, 30 N. J. Eq. 24, at page 28, the court says: "If the complainant has given further day of payment or in any other way waived the payment, according to the letter of the bond, the default contemplated and provided against has not happened." De Groot v. McCotter, 19 N. J. Eq. 531. Pomeroy in his Equity Jurisprudence says upon this same subject: "It seems, also, that a court of equity may relieve against the effect of such provision where the default of the debtor is the result of accident or mistake, and, a fortiori, when it is procured by the fraud or other inequitable conduct of the creditor himself." We might quote from the decisions of courts of other jurisdictions language similar to that above expressed, but we think we have quoted sufficiently to show that the general tendency of the decisions of the courts upon this subject is to hold that a suitor may not come into a court of equity and successfully invoke the aid of such court to enforce and foreclose a lien and subject to sale the property of another on the account of a default for which such suitor is himself responsible, especially when the alleged defaulter himself stood ready and willing at the agreed time and place to prevent the default.

Appellant concedes that "if nothing were involved in this case but the right to recover upon the first note the judgment is right," but insists that "it having been agreed in the mortgage that the failure to pay any one of said notes at maturity should cause all of said notes to become due and collectible, the court is wholly without authority to say that the readiness of the appellee to pay any of said notes at maturity should prevent the remaining notes from falling due." It must be conceded that this position of appellant is strongly supported by the authorities, supra, if he be right in his assumption that the finding of facts shows no more than a mere readiness of appellee to pay the first note at maturity and the interest on the others at the time and place fixed in said note for its payment; but it is in this assumption that counsel is in error. The findings show more than a readiness on the part of appellee to pay. They show that he actually placed and kept on deposit in the bank where said note was made payable the money for the purpose of making such payment with instructions to the bank that the money on deposit was for such purpose, and that payment was prevented on the day it was due by and on account of the failure of the appellant to present said note with the intent and purpose of causing a default in such payment, in order to render all of said notes due so as to authorize suit thereon. Under such facts, to conclude other than as the lower court concluded in this case would be to run counter to the rules of equity, and permit the mortgagee to take an unconscionable advantage of the mortgagor who was ready and willing to pay at the time and place prescribed in his agreement, but was prevented from so doing by the acts of the mortgagee. But appellant insists that, where the mortgagor fails to pay at the time fixed, he can be relieved from such default in payment only by showing that such payment was prevented "by accident, mistake, or fraud of the creditor," and that neither of such facts is found by the special findings in this case. If, in the absence of a finding of accident or mistake as the cause of the default, it was necessary to find that the same was caused by the fraud of the payee, appellant's contention would be supported by

authority, because there is in the finding in this case no finding of fraud, and we recognize the rule that requires fraud to be found as a fact and not left to inference where it is relied upon as a cause of action or defense. But we do not regard the holdings, supra, as requiring that fraud shall be proved in case of accident or mistake is proved. The recisions, supra, include all inequitable conduct on the part of the payee that causes the default. The payee is just as much bound by the terms of the provisions upon which the default rests as is the payor. Such provision is not intended as a means whereby he may at his own option take advantage of the payor and by his own conduct force a default; but, if he by his own act causes the default whether the act on his part be by deceit and fraud, or by some other means, he may in no event take advantage of the default which he himself so caused. For these reasons, we are of the opinion that there is no error in the conclusions of law on the facts found. Appellant insists that neither the decision of the court nor either of the facts found are sustained by sufficient evidence; but an examination of the evidence in the record convinces us that there was evidence tending to support each finding of facts and that neither of the several grounds of the motion for new trial presenting this question in different form presents any reversible eror.

The only other ground for the motion for new trial presented by the points and authorities of appellant relates to the exclusion of certain offered evidence of appellant on cross-examination. We are of the opinion that no error was committed in the exclusion of this evidence; but in any event our view of the case, as above expressed, upon the question of there being no necessity for a finding of fraud in this case, eliminates any prejudicial or controlling influence resulting from the exclusion of the evidence offered. We find no error in the record. Judgment affirmed.

Decision No. 1400.

LAMBERSON ET AL. v. LOVE.

(Supreme Court of Michigan. May 8, 1911.)

BILLS AND NOTES ACCOMMODATION PAPER EVIDENCE.

Sureties on defendant's son's contract, becoming liable, induced defendant to give a note payable to the obligee's agent; the sureties also signing it. The sureties borrowed money, paying it to the agent, who indorsed the note to them without recourse. Held, that defendant was an accommodation maker for the sureties' benefit.

The relations and liabilities of parties to accommodation paper can be shown by parol evidence.

Accommodation paper is discharged by payment thereof by the accommodated party, both under the express provision of Negotiable Instruments Law, § 121, and independent thereof.

Error to Circuit Court, Kalamazoo county; Frank E. Knappen, Judge.

Action by Charles A. Lamberson and others against Charles M. Love. Judgment for defendant, and plaintiffs appeal. Affirmed. Argued before BIRD, HOOKER, MOORE, McALVAY, and STONE, JJ.

Frost & Farrell, for appellants. Jackson & Fitzgerald, for appellee.

McALVAY, J. Plaintiffs were guarantors or sureties for one George Love to secure the faithful performance of a certain contract between him and a medical company, which had agreed to furnish him as its salesman certain medicines, extracts, etc., upon certain terms and conditions, and for which he agreed to pay in time and manner provided in the written contract. George Love defaulted in the performance of this contract to the amount of $681.40. Later suit was brought against him and his sureties upon this contract to recover this amount. George Love left for parts unknown. He is the son of the defendant. Plaintiffs undertook no defense to the suit against them. After it was begun they interviewed defendant for the purpose of being relieved from it and to avoid the payment of the amount claimed, and told him they came to find George, and that he was short about $700, and they had been called upon to settle. One of them mentioned the fact that George had made himself liable to arrest. Later, on September 30, 1908, the company's agent, Hunter, came to Kalamazoo. One of the plaintiffs called defendant by telephone, telling him that fact, and that he (plaintiff) wanted to get the matter settled and wanted defendant to pay it. The same day plaintiffs and the agent drove to defendant's farm for the purpose of getting this obligation upon which suit had been brought out of the way. After some talk it was agreed that, if defendant would give a note for $600, plaintiffs would sign it as sureties, and a note for that amount was drawn up by the agent payable to him, and was signed by the parties as agreed. Plaintiffs signed on the back" as sureties." The next morning plaintiffs met Hunter at the bank. They borrowed $600 on their four months' note, giving the money to Hunter; he having turned over to them the note executed the day before. This note they put into the bank as collateral to their note. Hunter also surrendered to them the contract with George Love upon which suit had been brought, and that suit was discontinued. Plaintiffs' note at the bank was renewed from time to time until the note signed by defendant came due, which he upon demand refused to pay, and they were then called upon to pay their indebtedness. After such payment they brought this suit. This note reads as follows:

"$600.00.

Texas, Kalamazoo County, Mich., Sept. 30, 1908. "On or before one year after date, I promise to pay to R. A. Hunter or order six hundred dollars with interest at the rate of six per cent. annually from date. Value received. Payable at Kalamazoo, Mich.

With following indorsements on back: "As sureties, C. A. Lamberson, J. C. Bogard." R. A. Hunter."

C. M. Love."

"Without recourse on me.

At the close of plaintiff's case, defendant moved for an instructed verdict, for the following reasons: (1) Want of consideration for the

note. (2) That it was in fact plaintiffs' obligation for their benefit. (3) Defendant was an accommodation maker for plaintiffs' benefit, and, having paid their own obligation, they could not recover from him. This motion was granted, a verdict for defendant was accordingly returned, and upon it a judgment was entered.

But one question is raised in this court by appellants. They contend that the court erred in directing a verdict.

It is clear that at the time these parties met, and the note in suit was made, defendant was in no way related to or obligated upon the contract with his son George upon which suit had already been brought. It is undisputed that defendant received no consideration when he signed the note. The testimony shows why plaintiffs were there. Lamberson testified: "It was for the purpose of getting this obligation that we had been sued upon settled, that we went out to Mr. Love's farm." Plaintiff Bogard testified: "We went out there for the purpose of getting this settled, and signed this note for the purpose of settling, so as to be relieved from this suit which had been started by the Rawleigh Medical Company. Mr. Love had agreed to settle this before. That was why I went out there; that is after the suit had been started against us. My only interest in this matter was to be relieved from the suit started against us so that we would not have to pay the $680. Mr. Love wanted us to sign the note, but we didn't care about what Mr. Love wanted unless we were relieved from this obligation. Our sole purpose in signing this note was to get relieved from this suit." The record shows that the note was not signed by defendant at the request of the agent, Hunter, nor upon his agreement to discontinue the suit against plaintiffs. Nor was the money obtained by Hunter at the bank upon the note in suit.

(1) Plaintiffs at the bank borrowed $600 on their note, paid it to Hunter, who indorsed the note to them without recourse, and surrendered to them their obligation to his company. These facts have been repeated to make clear the relations between the parties to this suit upon the note plaintiffs have paid. It is clear to us that this transaction was for their benefit. The consideration was moving to them. Their liability was reduced $81, and the suit was discontinued. In paying their note at the bank, they paid their own obligation. It follows that defendant upon this note was an accommodation maker for their benefit. This is shown by the evidence.

(2) The weight of authority is that the relations and liabilities of the parties to accommodation paper may be shown by parol evidence, and it may be shown that a person who is apparently liable only secondarily on the instrument is in fact the principal debtor. Am. & Eng. Enc. of Law (2d Ed.) 343.

I

(3) It is settled law that the payment of accommodation paper by the party accommodated discharges the instrument. This is also now the express provision of our negotiable instruments law. Act No. 265, P. A. 1905, § 121.

It follows that plaintiffs acquired no right of action against defendant, for as between them there was no consideration.

The trial court was not in error in directing a verdict for defendant. The judgment is affirmed.

Decision No. 1401.

ZALOOM v. GANIM ET AL.

(Supreme Court, Appellate Term. April 27, 1911.)

129 N. Y. Sup. 85.

BILLS AND NOTES - CHECKS - PRESENTATION.

Where no question of fact is in dispute, the determination of what is reasonable diligence in presenting a check for payment, in order to charge the drawer, is one of law for the court.

Negotiable Instruments Law, § 322, provides that a check must be presented for payment within a reasonable time after its issue. Section 4 provides that, in determining what is a reasonable time, regard is to be had to the nature of the instrument, any usage of trade or business with respect to such instruments, and the facts of the particular case. Held that, in view of the custom of the New York Clearing House Association, the deposit of a check received after banking hours, on the morning of the day after its receipt, and its presentment for payment in the usual course of business by the bank of deposit on the day following, showed due diligence in presentment; "reasonable" being a relative term, to be determined according to the circumstances of the case, "reasonable time" meaning so much time as is necessary under the circumstances conveniently to do what the contract requires," and " usage of trade" meaning a known, uniform, and reasonable usage, not contrary to law or public policy.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Selim F. Zaloom against Beshara Ganim and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before HENDRICK, LEHMAN, and DELANY, JJ. Benjamin Patterson, for appellants. Samuel J. Siegel, for respond

ent.

HENDRICK, J. A check is defined by section 321 of the negotiable instruments law (Consol. Laws 1909, c. 38) as "a bill of exchange drawn on a bank, payable on demand." The same section provides:

Except as herein otherwise provided, the provisions of this chapter applicable to a bill of exchange payable on demand apply to a check."

Section 322 limits the time within which a check must be presented in the following language:

"A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay."

As to a reasonable time the law (section 4) reads:

"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."