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one time thirty five-dollar bills of the Mechanics' Bank, and the bank tendered three
hundred half-dollars, issued under the act of 1853. This was held a legal tender, three
judges dissenting. Strong v. Farmers & Mechanics' Bank, 4 Mich. 350.

(n) Cotton V. Godwin, 7 M. & W. 147 ; Hesketh v. Fawcett, 11 id. 356; Henly v.
Streeter, 5 Ind. 207.

(o) Smith V. Anders, 21 Ala. 782.

( p) Call V. Lothrop, 39 Maine, 434.

(q) Hull V. Peters, 7 Barb. 331, Marvin, J. dissenting.

(r) Dent i-. Dunn, 3 Camp. 296 ; Woodruffs. Trapnall, 7 Eng. Ark. 640; Hunting-
ton r. Ziegler, 2 Ohio State, 10. But in Maine, in an action against principal and
surety, on a poor debtor's bond, with tender of the amount, the plaintiff may have, by
statute, a special judgment against the principal debtor for twenty per cent interest on
the amount due after the breach of the bond. Call v. Lothrop, 39 Maine, 434.

(s) Thetford v. Hubbard, 22 Vt. 440.

[t) The defendant said to the plaintiff, as the latter was passing in his wagon, " I
want to tender you this money for labor you have done for me," — holding in his hand



622 NOTES AND BILLS. [CIL XV.

A tender must be made by tbe debtor himself or by his agent,
and not by a stranger. (w) In like manner it must be accepted
or refused by the creditor or his authorized agent, (i;) But a
tender made to the lawful attorney of a party is sufficicnt,(i/?)
and if he be the attorney in fact, tho\igh he deny his authority,
it is good. (a;) A tender to one of two partners on a note owne<l
by the partnersliip is a tender to both.(/y)

Many of the objections to the validity of tenders may be
waived by the act of the creditor or the creditor's agent.
Thus, the tender of a bond agreed to be given is good, if the
other party, in refusing to accept it, admits its sufficiency, with-
out an exhibition of its writing or proof of its execution. (2)
If a tender is made, and the creditor object to the time of the
tender only, the amount is prima facie correct. (a) And a
bank-check may be a good tender, as we have seen, where
the amount only is objected to, and objection to the nature of
the tender is waived. But mere silence, it seems, is not such
waiver. (6) If tender is refused, it cannot afterwards be objected
that the money was not counted out, nor in fact offered. (t)
It has even been held that want of authority in an agent to
make a tender cannot be alleged in answer, unless objected
to when the tender was made. (6?) And so it has been queried
whether, if a party have knowledge of a subsisting lien on goods
sold, and fail to make the objection resulting from that fact,
he may not thereby have waived the objection. (e)



a sum equal to the debt, but naming no sum. The plaintiff made no reply, and did
not stop his team, but drove on. Held that this did not constitute a valid tender.
Knight V. Abbott, 30 Vt. 577.

(u) McDougald v. Dougherty, 11 Ga. 570.

(v) A statement of the secretary of an insurance company, that he had no stock
for a subscriber, was not considered as dispensing with a tender of the price. Ohio
Ins. Co. V. Nunemacher, 10 Ind. 234.

(w) Billiot V. Robinson, 13 La. Ann. 529.

(x) Mclniffe v. Wheelock, 1 Gray, 600.

{y) Prescott v. Everts, 4 Wis. 314.

(z) Alirams v. Suttles, Busbee, Law, 99.

(a) Bradshaw v. Davis, 12 Texas, .336.

(6) Jennings v. Mendenhall, 7 Ohio State, 257.

(c) Wesling v. Noonan, 31 Missis. 599.

{d) Lampiey v. Weed, 27 Ala. 621.

(e) Dunham v. Pettee, 4 E. D. Smith, 500. Infra, note m, and the corresponding
paragraph of the text.



CH. XV.] TENDER. 623

The tender itself may be wholly waived or dispensed with
by words or acts, and may be exercised by circumstances or
by omissions of the party to whom it should otherwise have
been made.(/) A tender may be waived by an absolute refusal
to receive the money, on the ground that no man is bound to
perform a nugatory act. Actual production of the funds is,
therefore, in such case dispensed with.(o') Hence, to support
an averment of tender, proof of waiver of tender has been
thought admissible and good. (A) Upon a valid tender of a
third party's note in performance of a contract, the title is
changed, and the contract discharged. And if the tender is
refused, the party making it may continue the possession, and
become bailee for the creditor, (i)

A tender not made in good faith is not a valid tender. (7)
But, on the other hand, where a tender is required to be made
before action brought, a fraudulent absence to avoid the tender
estops the party from objecting that none has been made.(A;)
The party receiving a tender must have had an opportunity to
object to it.(/) So long as there is a subsisting lien on goods
sold, tender is dispensed with. Nor is it enough that it appears
that, if the owners had called for the goods, the party holding
the lien would have waived it, and delivered the goods. (m)

A tender must be pleaded with a profert, or with whatever is
made its equivalent by the practice or rules of the court. The
money itself should, in the usual practice, be brought into
court,(w) that it may be tendered there again, as it appears to be
by the defendant's plea. And this necessity results from the
fact that a tender of payment, followed by a refusal to accept, is

(/) Ex psirte Banks, 2 De G., M. & G. 936, 19 Eng. L. & Eq. 486; Holmes v.
Holmes, 12 Barb. 137.

{(/) Stone V. Sprague, 20 Barb. 509; Hazard v. Loring, 10 Gush. 267; Hunter v.
Warner, 1 Wis. 141 ; Holmes v. Holmes, 5 Seld. 525; supra, notey.

(h) Holmes v. Holmes, 5 Seld. 525.

(«) Des Arts v. Leggett, 16 N. Y. 582.

(j) risk V. Holden, 17 Texas, 408.

{k) Southworth v. Smith, 7 Cush. 391.

(/) Sloan V. Petrie, 16 111. 262.
m) Dunham v. Pettee. 4 E. D. Smith, 500.

n) Cullen v. Green, 5 Harring. Del. 17 ; Knox v. Light, 12 111. 86; Clark v. Mul-
lenix, 11 Ind. 532; Mason v. Groom, 24 Ga. 211 ; Brock r. Jones, 16 Texas, 461 ;
Henry v. Raiman, 25 Penn. State, 354. It may be paid in at any time. Cullen v.
Green, supra.



C2i NOTES AND BILLS. [CH. XV.

110 absolute discharge of a note or bill or other promise to pay
money, and is no su')ject of a plea in bar.(o)

Unless a tender is made into court, it is no defence that a
good previous tender was made.(;j) A plea of tender, to be
good, must state tliat tiie defendant ever has Vjeen ready, and
ttill is ready, to pay the just demand, and the want of averment
of present readiness, with non-production of the money into
court, is defective. (<7) But sometimes, in gpite of a defect in
this particular in the plea of tender, evidence that a proper offer
was actually made has been permitted. (r) Since the contin-
uing ability and desire of the debtor to pay enters into the plea
of tender, it becomes a good replication that payment has been
refused subsequently to the alleged tender. (5)

A tender at the time, and afterwards in court, throws the
costs on the plaintiff. But if he goes on and proves that a
larger sum was due, of course the tender is defective, and the
plaintiff recovers costs. But if, in replying a larger sum, he
fails in the proof, he pays costs, though he may get the sum
already tendered. (^) But since a bill after the day of payment
begins to carry interest and costs, a plea of tender of the face
of the bill by the acceptor after that date is insufficient. (m)
Though whether a drawer or indorser would be subject to the
same strict rule, and whether his right to additional time for
payment should not modify his obligation, has been consid-
ered questionable, (t?)

Tender of part only of the amount declared on does not pre-
vent the defendant from showing that no more was du.e.{w)
The plea of tender may be good, although the declaration con-
tain two counts, one of which is for a larger amount than the



(0) Haynes v. Thorn, 8 Foster, 386 ; Huntington v. Ziegler, 2 Ohio State, 10.

(/)) Livingston v. Harrison, 2 E. D. Smith, 197.

(q) Clough V. Clough, 6 Foster, 24 ; Kortright r. Cadv, 23 Barb. 490. An offer to
confess judgment must, under the Indiana statute, be made in open court. Horner v
Pilkington, 1 1 Ind. 440 ; Harter v. Comstock, id. 525.

(r) Clough V. Clough, 6 Foster, 24.

(s) Kortright ». Cady, 23 Barb. 490.

(t) Logue V. Gillick, 1 E. D. Smith, 398.

(u) Hume r. Peploc, 8 East, 168.

(w) Walker v. Barnes, 5 Taunt. 240; Soward v. Palmer, 8 id. 277; Siggers ».
Lewis, 1 Cromp. M. & R. 370, contra.

{w) Howlett V. Holland, 6 Gray, 418.



CH. XV.] tp:nder. 625

sum tendered. (.c) If the money be brought into court, and the
debtor pleads that only a part is due, the court may order pay-
ment of that part without impairing the plaintiff's claim to the
residue. (y) But a plea of tender is not allowed with pleas de-
nying or justifying the whole cause of action in respect of
which the payment is pleaded, even with consent to withdraw
the pleas, and suffer judgment on the plaintiff's receiving the
money, (c)

If a tender be of specific articles, they must not be disposed
of by the tenderer. But it is otherwise with money, when ten-
der of it is refused. A sufficient amount only need be kept in
readiness, and not the very coins tendered. (a) Upon refusal of
a third party's note, the party tendering it may retain possession
as bailee of the creditor. (6) A tender is not complete under the
Louisiana civil code, until followed by an assignment or deposit
of the money or notes, (c)

The tender must, it is sometimes said, be wholly uncondi-
tional. ((/) But the true rule must be, or at least should be,
that no condition possibly harmful to the creditor must be an-
nexed, as that he should give a receipt in full of all demands.
But the debtor may ask a receipt for what is taken. And if he
pays a negotiable note, we should say he had a right to demand
the note ; (e) and we think he has an equal right to demand a
note non-negotiable, imless there be a good reason for the non-
delivery ; although, in that case, a receipt would bar all suit.
If the objection to the tender be put upon other grounds, the
objection arising from demand of a receipt as condition pre-
cedent is thereby waived. (/) It has been held, that where an
agent tendered payment and demanded the notes, which could
not be surrendered up, because they had been mislaid, and the
agent retained the money and failed, the holder recovered of
the payer, because such tender did not extinguish the debt, nor

[x) Sawyer v. Baker, 20 N. H. 525.

{y) Merritt v. Thompson, 3 E. D. Smith, 599.

{z) Gales v. Holland, 7 Ellis & B. 336.

(a) Curtiss v. Greenbanks, 24 Vt. 536.

(6) Des Arts v. Leggett, 16 N. Y. 582.

(c) Walker v. Brown, 12 La. Ann. 266.

(d) Hunter r Warner, 1 Wis. 141 ; Byles on Bills, 327.

(e) See chapter on Lost Notes.

(/) Cole V. Blake, Peake, 179 ; Richardson v. Jackson, 8 M. & W. 298.
Vol. II.— 2 P 53



(526 NOTKS AND RILLS. [CIL XV.

put the money at the risk of the creditor ; but it stopped the
interest. (g-)

If the contract is executory, an unconditional tender is not
required. An offer to pay, accompanied with a demand of per-
formance, is not bad, if, as in other cases, the money is in court
on trial, and the tender otherwise unol)jectionable.(//)



SECTION IX.

OF THE STATUTE OF LIMITATIONS.

The statute of limitations is sometimes interposed as a de-
fence. The provisions of these statutes in the several States,
in respect to promissory notes and bills of exchange, differ con-
siderably, as will be seen in our notes. (t) These statutes were



{g) Dent v. Dunn, 3 Camp. 296.

(A) Henry v. Raiman, 25 Penn. State, 354.

((') From the elaborate provisions of the statutes, which relate not only to simple
contracts, but to agreements under seal, criminal and civil actions of various sorts,
conveyances of real estate, judgments, &c., we will condense such matters as more
particularly concern promissory notes and bills.

The time of bringing a suit on a simple contract debt, such as that evidenced by a
note or bill, is limited by a definite period for each State, three, four, five, or six years,
as the case may be, after the right of action has accrued.

In Arkansas, Delaware, Maryland, North Carolina, and Tennessee, the period of
limitation after which suits upon account, assumpsit, or case, founded on any simple
contract, expressed or implied, cannot be brought, is three years. In South Carolina,
Texas, and California, the period is four years. In Florida, Illinois, Indiana, Ken-
tucky, Missouri, and Virginia, Jice years. In the United States jurisdiction, in Ala-
bama, Connecticut, Georgia, Iowa, Massachusetts, Maine, Michigan, Mississippi, New
Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont,
and Wisconsin, the period is six years. In almost all these statutes there are savings
and exceptions in favor of persons affected with certain disabilities. Such are, in all
the States, — 1. infants ; 2. insane persons ; 3. married women. To these may be added,
in most, if not all the States, persons imprisoned for certain periods, e. g. imprisoned
on a criminal charge or execution upon conviction of a criminal offence, for a term
less than life.

The statute provides, in such cases, that the time during which the disability op-
erates shall not be reckoned in the computation of the period of limitation, but that
the statute shall begin to run from the removal of the disability. This rule is nearly
universal, though not absolutely so. Thus, in Wisconsin, no disability can protract
the operation of the statute more than five years, except in case of infancy ; in the
latter case, the minor cannot be sued till he comes of <ige.

In general, after the disability is removed, the statute begins to rnn, and at the



CH. XV.] THE STATUTE OF LIMITATIONS. 627

originally enacted in England more than two centuries since, —



expiration of the usual term, the debt is barred. But in some States a briefer period is
granted in case some portion has already been consumed by a disability which has
been pleaded. Thus in the United States courts the additional period allowed is
three years. In Delaware it is one year. In all other cases, we think, the statute
runs its usual time upon simple contract debts, after the disability is removed.

It is enacted in many States, that a person who has left the State or resides out of
it, or (in some statutes) whose place of residence is unknown, although in the State at
the time when the cause of action accrues, may be sued within the time limited by the act,
after his return or removal to the State, or after his place of residence, if within the State,
becomes known. So see, for example, the Ohio and California Statutes of Limitations.
In Delaware, Georgia, and perhaps other States, there is no saving in favor of foreign-
ers or citizens of other States.

It is enacted in many States, th.Tt if any alien subject or citizen of any State which
is an enemy of the United States shall sue a simple contract debt, the Statute of
Limitations does not run until the end of the war. So it is in Massachusetts, Michigan,
New York, Vermont, California.

In New York, Wisconsin, California, and many other States, it is specially enacted
that no person shall avail himself of a disability, unless it existed when his right of
action accrued. And when two or more disabilities shall coexist at the time the right
of action accrued, the limitation shall not attach until they are all removed.

Sometimes a provision enacts that actions founded on contract between persons resi-
dent at the time of the contract without the State, which are barred by the laws of the
country or State where the contract was made, are barred in the courts of the State
where the action is brought. So see statutes of Ohio. So in Texas, if the debt is
barred by the statute of the State from which the emigrant came, it is barred in Texas
also, though the latter statute be longer in its period of limitation. But the whole
period prescribed by the statute of the foreign State must have elapsed. Hays v.
Cage, 2 Texas, 501. The Texas act applies no less to foreign than to domestic claims.
In general, and in the absence of statute provisions, as we shall illustrate hereafter, it
is not the lex loci contractus, but the lex fori, that regulates the plea of the statute of
limitations, and decides its applicability.

In all the States, we believe, accounts such as concern the trade of merchandise
between merchant and merchant, their factors, agents, and servants, are excepted from
the operation of the statute, at least in actions on the account, and in some cases in
debt or assumpsit on the same. In many States the statute bar is expressly removed
from any application to bills, notes, or other evidences of debt which may be issued hy
banks or other moneyed corporations, or issued and put in circulation as money. See
the statutes of New York, Massachusetts, Louisiana, Vermont, Arkansas. Harsh v.
Hanauer, 15 Ark. 252. But the North Carolina statute applies to all bonds, bills,
and other securities made transferable by law, after the assignment or indorsement
thereof, in the same manner as it operates against promissory notes. In Louisiana,
the prescription is five years for actions on bills of exchange or promissory notes to
order or bearer, except bank-notes, and for actions and all effects negotiable or trans-
ferable by indorsement or deliver3\ This does not apply to judgments, nor to due-
bills not negotiable. Hill v. Tucker, 13 How. 458 ; Goodall v. Tucker, id. 469.

A distinction is drawn in many States between sealed or attested promissory notes
and notes not under seal and not witnessed. The former run through a longer course
before the bar falls on them. Thus, in Massachusetts, if the note is signed in pres-
ence of attesting witnesses, and the action be brought thereon by the original payee or



(528 NOTKS AND BILLS. [CH. XV.

the first was in the year 1623, (y) — and they have subsequently
passed through many changes ; but the change in the judicial
view of them and the judicial treatment of them is still greater.
Formerly they were regarded with distrust and dislike ; now
they are favored, (A) and a liberal construction given to their
provisions (/) both at law and in equity. (m) Formerly they



his executor or administrator, the statute provision for six years does not apply. In
Connecticut, actious on specialties and pronaissory notes under seal are not barred
till the lapse of seventeen years ; those on unsealed notes, in six. In Vermont, a note
signed in the presence of attestinj^ witnesses has fourteen years to run before it is
barred. See supra, section on Alterations.

The Illinois limitation act of Nov. ."jth, 1849, does not embrace bills of exchange
and promissory notes, but relates exclusively to unwritten contracts. Dunlap v. Buck-
ingham, 16 111. 109. The act of 1843, in Iowa, fixes the period of limitation at six
years. Forsyth ». llipley, 2 Greene, Iowa, 181. The previous act of 1839 required
five years only. Malti)y v. Cooper, Morris, 59. As to the former's provisions respect-
ing promissory notes, see Bennett v. Bevard, 6 Iowa, 82. We shall presently see that
the operation of the statute may be interrupted by a new promise to pay, or an acknowl-
edgment of the debt sufficient in character to carry an implied promise to pay. Several
statutes have enacted that no such acknowledgment or new promise shall be effectual
to revive the debt otherwise barred, unless it be in writing, and subscribed by the party
to be charged thereby. Such are the statutes of New York, Wisconsin, California.

In Massachusetts, if the defendant shall have fraudulently concealed from the plain-
tiff that he had a right of action, the statute shall not run, as ordinarily, from the time
that right accrued, but only from the plaintiff's discovery of that right. So it is in
Michigan. In other States, what is here provided by statute is settled by judicial de-
cisions, as we shall soon state.

{j) The first statute limiting the time of bringing personal actions was 21 Jac. 1,
ch. 16, and is still in operation in England. Similar provisions for real property
had long before existed. The most important section of this act for our notice is
the third, which declared that no action of case or debt should be brought upon any
simple contract — except in case of " merchunts' accounts" — after the lapse of six
years from the time the cause of action accrued. But it was specially provided by
section seventh, that against one subjected to infancy, coverture, insanity, imprison-
ment, or absence beyond the seas, the statute sliould begin to run only from the re-
moval of these disabilities. In France, by the commercial code, the statute period of
limitation on bills and notes is five years, running from protest. But the promisors,
or, if they are deceased, their representatives, are compellable to testify on oath that the
debt is paid, in getting relief under the statute.

(k) The plea of the statute of limitations is not an unjust or discreditable defence.
Penley v. Waterhouse, 3 Iowa, 418 ; Chambers ». Garland, 3 Greene, Iowa, 322 ; Kyle
T. Wells, 17 Penn. State, 286 ; Gillingham v. Gillingham, id. 302.

(/) The statutes of limitation are statutes of repose, founded on sound policy, and
not to be evaded by forced construction. Roberts v. Pillow, 1 Hempst. 624, They
should be regarded with favor by the courts, and in all cases be liberally construed.
Phillips ('. Pope, 10 B. Mon. 163 ; Gautier v. Franklin, 1 Texas, 732.

(m) The statute does not apply in terms to suits in equity, but courts of equity gen-
erally adopt it to guide their decisions. Johnson i'. Smith, 2 Burr. 950. 961 ; Prince v.



CH. XV.] THE STATUTE OF LimTATIONS. 629

were regarded as statutes of evidence, making a term of time
witliout demand serve as proof of payment, on the ground tliat
in most cases it was so in fact. And thence grew up tiie earlier
rules, in which almost any kind or measure of oral recognition



Heylin, 1 Atk. 493 ; Stiukhou^e i'. Barnston, 10 Ves 453; Ferson v. Santijer, Daveis,
252. Thus, if a testutor by will provide for the payment of his debts, a court of equity
will not allow the devise to revive any debt barred during the life of the testator
by the statute ; though after such a devise no claim not barred at the testator's death
will be barred for the future in a court of equity. Jones v. Scott, 1 Russ. & M. 255 ;
Hughes V. Wynne, 1 Turner & R. 307 ; Hargreaves v. Michell, 6 Madd. 326 ; Burke
r. Jones, 2 Ves. & B. 275. So a debt not barred at the time of a decree in insolvency
cannot be barred afterwards. Ex parte Ross, 2 Glyn & J. 33! ; Kx parte Fenwick,
2 Deac. 27 ; Barton v. Tattershall, I Russ. & M. 237. In cases of concurrent
jurisdiction, as of fraud, equity sometimes goes further than law, and grants pre-
scription after a lapse of time which would not have barred the claim at law under
the statute. Ferson v. Sanger, Daveis, 252. In this country, as in England, in
all cases of concurrent jurisdiction of law and equity, the statute has been pro-
nounced equally obligatory in each court. Hertle v. Schwartze, 3 Md. 366; Gunn r.
Brantley, 21 Ala. 633; Nimmo r. Stewart, id. 682; Crocker v. Clements, 23 id. 296.
Where a party is an equitable trustee, by holding a confidential relation by act of law
or by agreement, the statute of limitations does not run against the rights, claims, and
duties incident to such relation, until it is ended. Blount ». Robeson, 3 Jones, Eq. 73 ;
Sayles v. Tibbitts, 5 R I. 79 ; Fisk i-. Wilson, 15 Texas, 430; Colbert v. Daniel, 32
Ala. 314 ; Shibla v. Ely, 2 Halst. Ch. 181. If a trust is existing, and an estate to be
administered in a court, a claim against the estate will not be barred by the statute in
that court. Playfair v. Cooper, 17 Beav. 187, 23 ling. L. & Eq. 329. For like reasons
the statute does not apply to the widow's claim for dower. Kiddall v. Trimble, 1 Md.
Ch. 143 ; Tooke v. Hardeman, 7 Ga. 20 ; Chapman v. Schroeder, 10 Ga. 321 ; May v.
Rumney, I Mich. 1 ; Wright v. Conover, 2 Halst. 482, 013. Yet dower may be barred
by lapse of time. Kiddall v. Trimble, 1 Md. Ch. 143. So the statute is not applicable to
the accounting of a guardian in court for his trust. Gregg ». Gregg, 15 N. H. 190.
Though here, as in dower, lapse of time raises a presumption of discharge. Ibid. For
we must remember that the statute of limitations does not abrogate the old common-
law presumption of payment from lapse of time. Sanderson v. Olmsted, 1 Chandl.
Wis. 190. And hence cases not included in the statute may yet become stale by age.



Online LibraryTheophilus ParsonsA treatise on the law of promissory notes and bills of exchange (Volume 2) → online text (page 80 of 103)