Lycoming Fire Insurance v. Batcheller & Sons

[151] The opinion of the court was delivered by Rowell, J. These notes are payable “ in such proportions and at such time or times as the directors of the company may, agreeably to their act of incorporation, require.” Said act provides that if any member shall, for the space of thirty days after publication of notice, neglect or refuse to pay the sum assessed to him as his proportion of a loss, the directors “ may sue for and recover the whole amount of his deposit note or notes.” The defendants made default for the space of thirty days after notice in the payment of an assessment, whereof notice was given in May, 1880, and they have ever since refused to pay the same or any part thereof. The question is, has the Statute of Limitations run upon the notes ? The plaintiff claims that it has not, for that the right to sue for and recover the full amount thereof on defendants’ default was a mere option, to be exercised or not at the pleasure of the company, and that its exercise by calling for payment of the whole was necessary before suit could be maintained therefor. But, treating the notes for this purpose as ordinary promissory notes, the case of Dawley v. Wheeler, 52 Vt. 574, is a full answer to this claim. There the note was at five months date, with interest after, but contained a consent that the payee might collect it at any time by discounting a proportional amount of the interest paid in advance. This was held to be in legal effect a note on demand, and that the statute began to run upon it from the time of its delivery, notwithstanding, in order to collect it within the five months, the payee would have had to exercise the option of commencing suit upon it. The ground and reason of the holding are sufficiently set forth in the opinion, and need not be repeated nor enlarged upon here. But it is said that the case at bar does not come within the rule that when a sum is payable in instalments, and there is a stipulation that in default as to one all shall become due, the statute runs upon all from the time of default, for that these notes are neither debts nor evidences of debts, but, looked at in the light of their purpose, and in connection with the charte^ [152] and by-laws, appear not to have been made for the absolute payment of the sums mentioned in them, nor for any sum, but as engagements to pay the proportion of losses that might belong to the makers to pay, not exceeding the nominal sum mentioned therein, when assessments for that purpose should be made; that the provision in question is a mere penalty, and not a stipulation that the whole notes should become actually due and payable in the event named ; and lienee that the plaintiff is guilty of no laches, and the statute has not run. This proposition would bo important, if not controlling, if the question was whether these were to be treated as demand notes from their delivery, or whether an assessment would be a necessary preliminary to a suit upon them, as is shown by Savage v. Medbury, 19 N. Y. 32, and Rowland v. Edmonds, 24 N. Y. 307, to which we are referred. But it is not controlling now, no matter what the precise nature of the notes is in this regard, for the question still is: When might the plaintiff first have maintained an action for the recovery of the full amount of them ? for from that time the statute runs. If the plaintiff chose to wait till the assessments were made and noticed, it could do so; but that which was optional on its part would not affect the right, of the defendants, who might well consider the cause of action as accruing when the plaintiff first had a right to sue for the whole. That the plaintiff could have maintained an action for the full amount on the first default, and that, too, without demand, is beyond question, for, from that time forth, the defendants continuing in default, the notes became and were in law payable on demand. Jones v. Sisson, 6 Gray, 288, is authority on this point. It is said that it is not authority, because a demand was there made for payment of the whole note before suit brought. But that does not appear, but only that a demand was made for the payment of the assessment, for the non-payment of which plaintiff sought to recover the whole. We hold, therefore, that the statute has run on these notes, and of course the assessment sought to be recovered goes with them. Judgment affirmed. Munsón, J., having been of counsel, did not sit.