Kohler v. Montgomery

Perkins, J. Lutz dé Lpjjiler made a note, payable at a bank, to Kohler. The note was dated February 3, 1860, and was payable one hundred and twenty days after date. Koh'er indorsed the note to the plaintiff. The complaint, which is against the maker and indorser, avers that the note was duly presented for payment, &c., but does not name the day when, &c. Lm1z c6 Tjpffler made default. Kohler put in the general denial. Trial; judgment for the plaintiff. The proof was that demand of payment, and notice of nonpayment, so far as there were any, were made on June 5,1860. This was premature, by one day. Commercially, February never has but twenty-eight days. Iud. Dig., p. 763. See Story on Bills, § 320, as to excluding the day of date in the computation of time. There were no allegations nor proofs as to whether the 'makers had money at the place of payment on June 6, the day when payment was to be made, or not. A case, there-fore, was not made out against Kohler, on the trial. See Spangler v. McDaniel, 3 Ind. 275. But it is contended that as no demurrer was put in to the [221] complaint, the question of the proper time of making demand of payment cannot be raised on appeal. John II. S.otmiburg and T. M. Brown, for the appellant. W. T Otto, for the appellee. If the protest and notice are not a part of the complaint in this case, (and it was not necessary to make them so,) the complaint does not show the day when demand was made, as it simply avers that it was duly made, and hence a demurrer would not have raised the question. If, on the other hand, the protest and notice were, in this case, made a part of the complaint, they did not cause it to show a legal demand and notice of non-payment, and this defect may be taken advantage of on appeal, by the indorser. Blacklege v. Benedick, 12 Ind. 389. Per Curiam.. — The judgment is reversed, with costs. Cause remanded, with leave to amend, &c.