Bartholomew v. Seaman

This action was commenced on the 1st day of September, 1880, on a guaranty of payment of a promissory note, dated June 1,1874, with interest at seven per cent per annum from date, payable half yearly; no time of payments named. The defense is the statute of limitations, and it was allowed by the trial court.

For the purposes of the statute of limitations a promissory note without day of payment is payable immediately, and the statute commences its run on the day of the date of the paper, whether it is payable with or without interest. This note in suit being therefore payable at once on its execution, an action might have been prosecuted for its collection immediately thereafter, without demand. {Howland v. Edmonds, 24 N. Y., 307.) Such suit was permissible, not because it was itself a demand, but because the instrument was due and payable.

The current of authority was smooth and uniform in this wise until the case of Merritt v. Todd (23 N. Y., 28), and thereafter that case was often called on to wrest contract demands from the statute of limitations. That case was inharmonious with other ■decisions, and created some disturbance, and decisions were made in supposed obedience thereto, but when the case of Wheeler v. Warner (47 N. Y., 519) went to the Court of Appeals, occasion was taken to explain the extent and meaning of the decision in that ■case, and to declare the law as it had ever been understood. In the ■opinion it is said: “ There is no divided opinion here or in England that upon such a note, with or without interest, an action may be maintained against the maker without any demand, because it is due.”

This note, then, being due immediately on its delivery, the liability of the guarantor became fixed at the same time, and suit might have been then maintained against him thereon. His liability was coextensive with that of the maker and commenced at the same time, and the holder of the paper had the option to sue him .alone. (Tuton v. Thayer, 47 How., 186.) Thus the statue of *621limitations commenced to run against the defendant on his contract of guaranty at the date thereof, June 1, 1874, and had run its full course of six years before the commencement of this action. The claim was thus barred by the statute, and the remedy thereon lost.

The judgment must be affirmed, with costs.

Judgment affirmed, with costs.