Stowe v. Colburn

Tenney, J. —Prior to the statute of 1846, chap. 218, in an action on a promissory note, made payable at a time and place certain, no averment or proof of a demand was necessary on the part of the holder; but if the maker was ready to make payment at the time and place specified, such would be matter of defence. Bacon v. Dyer, 3 Fairf. 19; Remick v. O’Kyle & al., ibid. 340. And when a note was payable on demand at a particular place, no averment or proof of a demand was necessary to entitle the holder to maintain an action upon such note ; but a readiness of the maker to pay at the place, when a suit was brought upon such note would be a defence. McKenney v. Whipple, 21 Maine, 98. By the statute referred to, it is provided, that in an action on a promissory note payable on demand at a place certain ; or on demand at a place certain, after or at the expiration of a specified time, the plaintiff shall not be entitled to recover, unless ihe shall prove a demand to have been made at the place of payment, before the commencement of the suit. On a fair construction of a note payable at a place certain ¡and at a fixed future time, without the words “ on demand,” those words are not implied, and the note since the statute, is ¡an essentially different contract from one in which those words are inserted. In a note of the latter description, a demand is ¡a condition precedent, to the right to commence and maintain ¡an action thereon. The import of those words is, that the maker shall have an opportunity to fulfil his promise upon ¡notice, at the time and place. But in one of the former char 35 acter he reserves to himself no such privilege ; the promise is absolute and unconditional, that he shall make the payment at the time and place mentioned. According to the agreement of the parties Defendant defaulted.