Ziel, Bertheau & Co. v. Dukes

         I. Notes " on demand" are due at once on the day of their date. These words are conceded to import simply that there is a subsisting debt then due. The idea that a formal demand of payment before suit is essential to complete plaintiff's right of action, and that then the maker has the whole day of demand to pay, is not sustained by any good modern authority. On the contrary, a suit is a demand, and the only demand necessary. " The demand is not parcel of the contract." Story Prom. N., sec. 29; Wenman v. Mohawk Ins. Co., 13 Wend. 268, and cases cited; 1 Monroe, 207; 13 Mass., p. 136.

         II. The note being due the day after its date, October 28th, was due October 29th, and drew interest from that time.

         Appellant assumes it to be settled law that interest does not run on notes " on demand," until after demand. For this doctrine he relies upon generallaw.

         Now, although the rule is so laid down in many authorities, particularly where nothing is said about interest on the face of the note, still it is also held differently by other authorities; and the effort has been to make the rule accord with the sense of the thing, to wit, that all notes or claims should bear interest from the time they are due.

         But in this State the statute has settled the law. In Wood's Cal. Dig. 551, the Court will find that ten per cent. per annum interest is allowed " for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing * * * for money lent, for money due on the settlement of accounts, from the day on which the balance is ascertained, and for money received to the use of another."

         Even under the English rule, a note promising to pay " # 1,500 on demand, with lawful interest," drew interest from date. Weston v. Tomilson, cited in Chitty on Bills, (10 Am. ed.) 681, note (e. ); Roffey v. Grunwell, 2 Perry & Dav. 356.

         III. The judgment in Jacobs v. Dukes is not for more than was due.

         This proposition follows necessarily from the preceding one. If the money was due on the twenty-ninthof October, 1857, a calculation of interest on $ 3,000 from that day to December 1st, the day of entering the judgment, will give $ 27.50, the exact amount computed by the Clerk.

         JUDGES: Terry, C. J., delivered the opinion of the Court. Field, J., and Baldwin, J., concurring.

         OPINION

          TERRY, Judge

         Neither of the points in this case are well taken.

         The note was presently due, and it was not necessary to show any actual demand to enable Jacobs to recover.

         " If a note be made payable at sight, or at ten days after sight, or in ten days after notice, or on request or on demand in all these and the like cases, the note will be held valid as a promissory note, and payable at all events, although, in point of fact, the payee may die without ever having presented the note for sight, or without giving any notice to, or made any request or demand upon the maker for payment. But the law, in all cases of this sort, deems the note to admit a present debt, to be due to the payee, and payable absolutely at all events, whenever, or by whomsoever, the note is presented for payment, according to its purport. Nay, where a note is payable on demand, no other demand need be made, except by bringing a suit thereon. So, where a note does not specify any day or time of payment, it is by law deemed payable on demand, and, therefore, is construed as if it contained the words 'payable on demand' on its face." Story on Prom. Notes, sec. 29.

         The second point is predicated on the fact, that by an error in computing interest, judgment was rendered for $ 27.50 interest, when the interest due is, by appellant's calculation, only a fraction over $ 26.

         It does not appear whether this error was made by the Clerk, who entered the judgment, or by the plaintiff; at any rate, it is clear that it is the result of a mistake, and we presume no precedent can be found for annulling the judgment for such a cause.

         Judgment affirmed.