Whitwell v. Brigham

Morton J. delivered the opinion of the Court. The declaration, which is general, combining in one count all the common counts, is undoubtedly good. It is said that we are indebted, for the length of many of our English precedents, to the mode of compensation. But as American pleaders and scriveners are not paid by the page, it is for their interest to abridge rather than prolong, and the effect of this may be seen [121] in. the abbreviation of the forms of all our proceedings. And this labor-saving propensity, so long as it does not sacrifice perspicuity to brevity, may well be indulged. One count may always be abridged by referring to another. And the several common counts are no less intelligible and perspicuous when combined, than when drawn out separately. That the surety who properly pays money for his principal, or the indorser for the maker or prior indorser, or the acceptor for the drawer, can recover it on the count for money paid, &c. cannot be doubted. Bayley on Bills, (Phil. and Sewall’s 1st ed.) 244, 312; Cornwall v. Gould, 4 Pick. 444; Beckwith v. Sibley, 11 Pick. 482. The collateral security which the defendant had given to the plaintiffs, by depositing in their hands the note of Denny and others, constituted no obstacle to their suit or attachment. Cornwall v. Gould, 4 Pick. 448; Beckwith v. Sibley, 11 Pick. 482. And they must now prevail, if their payment was duly and properly made. The inquiry into this point, is the only one which has given us any trouble. The defendant’s counsel contends, that the acceptances were paid before they were due, and the payment thus being voluntary, forms no sufficient ground of action. On the other hand, the plaintiffs argue that the suit might be instituted before payment, and supported by evidence of payment, during its' pendency, at any time previous to the trial. The case of Douglas v. Moody, 9 Mass. R. 553, gives some countenance to this suggestion ; but we will not stop to investigate this point, because the opinion which we have formed on, another supersedes the necessity of it. See Campbell v. Macomb, 4 Johns. Ch. R. 534. The bills fell due on the 31st of December. On the 30th of December the plaintiffs “ paid and took up the bills,” and “ on the 31st of December, at 6 o’clock A. M., they commenced this action” and made their attachment. Was the action prematurely brought ? The general principle, that the obligor in a bond, the promisor in a note, and the acceptor of a bill, are entitled to the whole of the day on which they fall due, to pay them, is un questionable. 6 Bac. Abr. Tender, D; Com. Dig. Rent, B 9 [122] D7 ; Greeley v. Thurston, 4 Greenleaf, 479; Leftley v. Mills, 4 T. R. 170. Hence no action will lie upon either, until the whole day has expired. The law merchant, however, has a modification of the principle operating upon negotiable instruments, by which mercantile paper is considered as falling due upon demand, on the last day of grace. And a demand made at any reasonable hour within the day, and a refusal to pay, will warrant notice to any of the prior parties and authorize the commencement of an action. Thus an action may be brought against the maker of a note and the acceptor of a bill, and after notice, against the indorser of either. Shed v. Brett, 1 Pick. 401 [2d ed. 405, note 1]; City Bank v. Cutter, 3 Pick. 414 [2d ed. 418, note 2]; Greeley v. Thurston, 4 Greenleaf, 479. But as the party is entitled to the whole of the last day in which to make the payment, so he may avail himself of any part of it for the purpose. And although he could not, in the absence of the other party either at his place of business or on the premises, make a tender till near the close of the day ; yet should the parties meet at a suitable place, the tender might lawfully be made at any time within the day. 6 Bac. Abr. Rent, I, 2; William Clun’s case, 10 Coke, 127; Tryon v. Carter, 7 Mod. 231. When the payment is to be made at a particular place, and to a corporation or person having a regular house of business, the day would necessarily refer to and be limited by the time established by regulations or usage for the transaction of business. Parker v. Gordon, 7 East, 385. But where the payer and payee meet and both are willing to transact the business, payments may lawfully be made at any hour of the day from the earliest to the latest. And the cause of action accrues the moment the money is paid ; and, no notice other than the service of the writ, being necessary, a suit may be commenced at any time on the day of payment. In Garnett v. Woodcock, 1 Stark. R. 475, Lord Ellenborough says, “ I think it is perfectly clear, that if a banker appoint a person to attend in order to give an answer, a presentment would be sufficient if it were made before twelve at night.” If therefore the plaintiffs had paid these acceptances before 6 o’clock on the morning of [123] the 31st of December, their action would have been rightfully commenced. It only remains for us to inquire whether the transaction on the second day of grace can avail as a payment on the last day of grace. It is not to be disguised, that the plaintiffs intended then to pay and take up their acceptances and the holders intended to receive payment and to discharge their securities. The justice of the claim is manifestly with the plaintiffs. Neither the defendant, nor his creditors, suffered any loss or injury from the anticipation of the payment. They are now in as favorable a situation, in every respect, as if the payment had been made at five o’clock on the last day of grace. We therefore feel bound to give effect to this attempted payment, if it can be done consistently with the established principles of law. And although a surety or indorser or an acceptor may not hasten their remedies by paying their debts before they become due, yet we think these principles will apply the means placed in the hands of the payee beforehand, to the discharge of the obligation or the payment of the debts according to the intention of the parties. Campbell v. Macomb, 4 Johns. Ch. R. 534. It is an old and well settled rule, that although a plea of payment before the day is not good ; yet that a plea of pay at the day is supported by proof of payment before the day. Tryon v. Carter, 7 Mod. 231; Holmes v. Broket, Cro. Jac. 434; Sturdy v. Arnaud, 3 T. R. 601. These adjudications are necessarily founded on the principle, that money paid by the one party and received by the other with the intent to extinguish a debt, shall be so applied as to effectuate their purpose as soon as the rules of law will permit. In the quaint language of the court in Holmes v. Broket., “ payment before the day, is good payment at the day.” Where money is to be paid at a particular place or on a particular day, it is sufficient to pay it at another place or before the day, if it be accepted, for that amounts to payment at the place or on the day. 3 Com. Dig. Condition, G7; 1 Roll. Abr. 440, 473; Co. Lit. 212 b. In the case at bar the money of the acceptors was placed in the hands of the holders, with an intent, in which both con [124] curred, that it should pay the acceptances. Between these parties it was a perfect satisfaction, and would forever bat any claim by either against the other, upon these bills. But if by «ny rule of law, it could not, in relation to the rights of others, be deemed payment because it was premature, yet we can discover no obstacle in law or equity, to the application of it to that purpose, at the earliest moment of the day on which the bills fell due. We are therefore of opinion, that here was $ legal payment of the acceptances by the plaintiffs, on the day of their maturity and before the commencement of their action. Defendant defaulted.