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21 R. C. L.

PAYMENT

7

time of payment until the maturity of the note. This is on the ground that the advantage to the creditor in getting a settlement, and obtaining paper that he may negotiate, and cut off all defenses, is a sufficient consideration for the extension.10

7. Due Date Falling on Sunday.-While at common law Sunday was not a dies non, yet Sunday statutes, in most jurisdictions, have made it such, to a greater or less extent; and even in the absence of such statutes, it seems to be the general rule that, where the day for making a payment on a non-negotiable contract falls on Sunday, failure to make it on that day does not subject the promisor to liability as for a default in payment, but he has the following day within which to make it.11 It has been said that the rule that, when the time for payment according to the terms of a contract expires on Sunday, payment on the following Monday is good, should not be applied to payments which by statute are required to be made within a time therein limited.12 Still it has been held that under a statute providing that a creditor who might have redeemed land from an execution sale within a certain period may redeem from any other redeeming creditor, although such period has elapsed, provided that he thus redeems within twenty-four hours after the last previous redemption, if one creditor redeems at noon on a Saturday, another creditor may redeem from him on the following Monday morning, although the original period for redemption has elapsed, where such redemption is required by law to be made at the sheriff's office, and the sheriff is not required to have his office open on Sunday, Sunday, under such circumstances, being a dies non within the contemplation of the statute, and the second redeeming creditor having twenty-four hours exclusive of the Sunday within which to redeem from the first redeeming creditor.13 It is well settled, under the law merchant and at common law, that, where commercial paper with grace matures on Sunday, it becomes due and payable, and payment thereof should be demanded, on the preceding business day.14 But where a bill or note entitled to grace is, on its face, due on a Sunday, it is not, for the purpose of adding the three days of grace, to be considered as apparently payable on Saturday, so as to abridge the period of grace and make the paper mature on the Tuesday following.15 In the

9. Leschen, etc., Rope Co. v. May-
flower Gold Min., etc., Co., 173 Fed.
855, 97 C. C. A. 465, 35 L.R.A. (N.S.)
1 and note. And see infra, par. 87.

10. Note: 35 L.R.A. (N.S.) 110.
11. Child v. Edwards, [1909] 2 K.
B. 753, 78 L. J. K. B. N. S. 1061, 101
L. T. N. S. 422, 25 Times L. Rep. 706,
3 British Rul. Cas. 675 and note. See
generally, SUNDAYS AND HOLIDAYS.

12. Note: 3 British Rul. Cas. 682.

13

13. Porter v. Pierce, 120 N. Y. 217, Note: 3 British Rul. Cas. 682. 24 N. E. 281, 7 L.R.A. 847. And see EXECUTIONS, vol. 10, p. 1347.

14. Note: 3 British Rul. Cas. 684. And see BILLS AND NOTES, vol. 3, p. 1213.

15. And see BILLS AND NOTES, vol 3, p. 1213.

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case of commercial paper not entitled to grace, which, by its terms, falls due on a Sunday, it seems that, like ordinary non-negotiable contracts, it becomes payable on the following business day.16 Likewise where the day for the payment of the premium on a life insurance policy falls on Sunday, although, regardless of the grace allowed by the policy, the assured would have had the right to pay the premium the following Monday, this fact does not have the effect of adding a day to the period of grace allowed by the policy, but such period is computed from the Sunday on which the premium is nominally due.17

8. Necessity for Demand.-Under an ordinary obligation to pay money, the debtor is not entitled to wait for a demand,18 and, a fortiori, no demand is necessary where the time of payment is specifically fixed by the terms of the contract.19 But if a contract for the payment of money fixes no specific time of payment, it is payable on demand.20 Where the agreement is to pay in specific articles, without designation of time or place, there is diversity of opinion as to whether the creditor must demand payment, or whether the payor must first seek the payee and offer to perform the stipulation in the contract.1 According to one view where no time is fixed by the contract, there must be an offer or a tender within a reasonable time to pay or deliver.2 But the better rule seems to be that the creditor must demand payment in order to put the debtor in default, as the making of the demand is a precedent act to be performed by the obligee; and were the courts to permit a recovery to be had against the obligor, without compelling the obligee to show that he had given him an opportunity, by a demand so made, to discharge the obligation in the property contracted for, it would, in fact, in all such cases, be putting it in the power of the creditor to change his property debt into money, and the debtor, by no exertion on his part, could prevent it. The demand, where one is necessary, must be such as will enable the obligor to perform according to the terms of his contract. The time of payment in property or services being fixed by the contract, the creditor is not obliged to demand payment in order to fix his rights against his debtor. It is the duty of the debtor to offer the property or service

16. Note: 3 British Rul. Cas. 686. And see BILLS AND NOTES, vol. 3, p. 1213.

17. Aetna L. Ins. Co. v. Wimberly,
102 Tex. 46, 112 S. W. 1038, 132 A.
S. R. 852, 23 L.R.A.(N.S.) 759.

Note: 3 British Rul. Cas. 681.
18. Toms v. Wilson, 4 B. & S. 442,
116 E. C. L. 442, 10 Jur. (N. S.) 201,
32 L. J. Q. B. 33, 382, 21 Eng. Rul.
Cas. 1 and note.

19. Deel v. Berry, 21 Tex. 463, 73

Am. Dec. 236. And see CONTRACTS, vol. 6, p. 896 et seq.

20. Columbia Bank v. Hagner, 1 Pet. 455, 7 U. S. (L. ed.) 219.

1. Deel v. Berry, 21 Tex. 463, 73 Am. Dec. 236.

2. Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410.

3. Grant v. Groshon, Hardin (Ky.) 85, 3 Am. Dec. 725.

Note: 12 Am. Dec. 575.

4. Note: 12 Am. Dec. 575.

on or before the date specified. A debtor who is bound by the express terms of a contract to pay "immediately on demand" is allowed a reasonable opportunity for complying with the demand; this is but an application of the general rule that courts will construe "immediate" in all kinds of contracts to mean within a reasonable time." Where by the terms of a contract the failure to pay one of several instalments may at the option of the obligee throw the whole contract into default, the duty lies with the obligee to notify the obligor of his election to treat the whole principal as due at once, and, in case of his failure so to do, the debtor cannot be held to be in default for more than the single payment.8

III. PLACE OF PAYMENT

9. In General. The place for the payment of money is a substantial part of any contract to pay it there. It may be insisted on by him who is to receive it, and cannot be rightfully refused or omitted by him who has it to pay. A broken promise of that kind gives to the creditor a right of action against the debtor for its recovery.9 In general, a debtor who is indebted on a money obligation is bound, if no place of payment is specified in the contract, to seek the creditor, and make payment to him personally.10 But a creditor will not be permitted, by wilfully avoiding his debtor either personally or by concealing his place of residence, to put him in default.11 While it is a rule of quite general acceptation that a debtor must seek his creditor to pay his indebtedness, it is always open to the parties to show by the express terms of the contract, or by fair inference therefrom, that it was the intention of the parties to pay at a particular place or within a particular state or country.12 And the prevailing

5. Grant v. Groshon, Hardin (Ky.) 85, 3 Am. Dec. 725; Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410; Deel v. Berry, 21 Tex. 463, 73 Am. Dec. 236.

6. Toms v. Wilson, 4 B. & S. 442, 116 E. C. L. 442, 10 Jur. (N. S.) 201, 32 L. J. Q. B. 33, 382, 21 Eng. Rul. Cas. 1 and note.

7. Note: 21 Eng. Rul. Cas. 14. 8. Basse v. Gallegger, 7 Wis. 442, 76 Am. Dec. 225. And see MORTGAGES, vol. 19, p. 492.

9. Raymond v. Tyson, 17 How. 53, 15 U. S. (L. ed.) 47.

10. Chemung Canal Bank v. Lowery, 93 U. S. 72, 23 U. S. (L. ed.) 806; Dockham v. Smith, 113 Mass. 320, 18 Am. Rep. 495; Chapman v. Robertson, 6 Paige (N.Y.) 627, 31 Am. Dec. 264;

Hale v. Patton, 60 N. Y. 233, 19 Am. Rep. 168; Weyand v. Park Terrace Co., 202 N. Y. 231, 95 N. E. 723, Ann. Cas. 1912D 1010, 36 L.R.A. (N.S.) 308; Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410; Allshouse v. Ramsay, 6 Whart. (Pa.) 331, 37 Am. Dec. 417; Davidson v. Browning, 73 W. Va. 276, 80 S. E. 363, L.R.A.1915C 976; State v. Kenosha Home Telephone Co., 158 Wis. 371, 148 N. W. 877, Ann. Cas. 1916E 365.

Notes: 21 Am. Dec. 213; 21 Eng. Rul. Cas. 14.

And see BONDS, vol. 4, p. 62; CONTRACTS, vol. 6, p. 902.

11. Noyes v. Clark, 7 Paige (N. Y.) 179, 32 Am. Dec. 620.

12. Brown v. Jones, 113 Ind. 46, 13 N. E. 857, 3 A. S. R. 623; Weyand v.

fore the discussion herein is limited to a statement of those rules which are general to all questions of payment, and covers the time, place, mode and medium of payment, the application of payments made, the operation and effect of a payment, and pleading and proof of payment. There is also a treatment of the right to recover back money paid under duress, fraud, or mistake. A discussion of the proof of payment necessarily carries as a part a consideration of the presumption of payment from lapse of time. There is, however, no treatment of the closely allied subject of the limitation of actions. And likewise the question of the effect of payment as tolling a statute of limitations and the effect of applying a payment to a barred debt as waiving the right of action thereon are considered in the article which discusses the limitations of actions." Other related matters which are treated elsewhere in this work are payments in performance of compromises, 10 or by way of accord and satisfaction; 11 payment as a compliance with the statute of frauds,12 and tender of payment.13

3. Constituent of Elements of Payment.-The authorities agree that to constitute payment the money or other thing must pass from the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose.14 Thus where public moneys on deposit are taken by the depository merely for the purpose of counting and then returned to the bank, there being no intentions on the part of either the officers or the bank that the deposit should be paid, there has not been a payment.15 Depositing money in the post office addressed to the creditor, at least where he has not so directed, is not a payment, for there is no delivery, and therefore where a bank after mailing its check in payment of a customer's note discovers that the customer was not in funds but had in fact assigned his property, and recalls its check from the post office, payment has not been effected, especially where the whole transaction was unknown to the payce.16 Again, it has been held that an agreement at the making of a note that it shall be set off against a note due the maker from the payee, which is not present, so far as the smaller will pay the

9. See LIMITATION OF ACTIONS, vol. 17, pp. 921-922.

10. See COMPROMISE AND SETTLEMENT, vol. 5, p. 875.

11. See ACCORD AND SATISFACTION, vol. 1, p. 176.

12. See STATUTE OF FRAUDS. 13. See TENDER.

14. Bronson v. Rodes, 7 Wall. 229, 19 U. S. (L. ed.) 141; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 5 S. Ct. 213, 28 U. S. (L. ed.) 733; Parker v. Carter, 91 Ark. 162, 120

S. W. 836, 134 A. S. R. 60; Fremont County v. Fremont County Bank, 145 Ia. 8, 123 N. W. 782, Ann. Cas. 1912A 1220; Lovett v. Eastern Oil Co. 68 W. Va. 667, 70 S. E. 707, Ann. Cas. 1912B 360. As to mutual accounts operating as payment, see infra, par. 42.

15. Lovett v. Eastern Oil Co., 68 W. Va. 667, 70 S. E. 707, Ann. Cas. 1912B 360.

16. Steinhart v. National Bank, 94 Cal. 362, 29 Pac. 717, 28 A. S. R. 132.

larger, is executory, and does not, pro tanto, extinguish either note.17 When the creditor owes a claim or demand to the debtor, he cannot without the consent or direction of the debtor, apply what he owes as a credit on the note or demand he holds against the debtor. The reason for this rule is that the debtor, who is, to the extent of his demand, a creditor, has the right to direct and control the disposition that shall be made of his debt, and to apply or not apply as he pleases to the payment of demands that he owes, and this privilege cannot be taken out of his hands by the mere act of another person.18 But judgment by default, upon an account in which the defendant is credited with the full value of certain services, will be a bar to an action for such services brought during the pendency of the first action.19 It is essential to constitute a gift that the subject be accepted by the donee, and although in the case of money the acceptance is usually presumed, yet the presumption may be rebutted by proof of nonacceptance.20 It follows that a creditor cannot without consent of his debtor give credit for a payment not actually made. However, in some jurisdictions the courts have permitted a creditor to remit a part of his claim. in order to bring the cause within the jurisdiction of the court. A payment is no less absolute because it is made subject to a demand for a receipt, for a debtor has a right to demand a receipt as evidence of payment. In the absence of any agreement, either expressed or clearly implied, payment means the discharge of a debt or obligation in money; and by some codes it is defined to be performance of an obligation for the delivery of money only. This does not mean that nothing else may constitute payment. On the contrary by agreement of the parties anything of value, which the debtor gives and the creditor receives as a satisfaction of a debt, will be considered payment; but in such a case it is the distinct agreement of the creditor to accept the thing in discharge of the debt that gives it the character

17. Cary V. Bancroft, 14 Pick. Va. 667, 70 S. E. 707, Ann. Cas. 19125 (Mass.) 315, 25 Am. Dec. 393.

18. Samuel v. Samuel, 151 Ky. 235, 151 S. W. 676, Ann. Cas. 1915A 278, 42 L.R.A.(N.S.) 1155 and note. Note: Ann. Cas. 1915B 698. 19. Briggs v. Richmond, 10 Pick. (Mass.) 391, 20 Am. Dec. 526. 20. Moore v. Thomson, 44 N. C. 221, 59 Am. Dec. 550. And see GIFTS, vol. 12, p. 932.

1. Moore v. Thomson, 44 N. C. 221, 59 Am. Dec. 550. And see LIMITATION OF ACTIONS, vol. 17, p. 932.

360.

4. Borland v. Nevada Bank, 99 Cal. 89, 33 Pac. 737, 37 A. S. R. 32; Mansfield v. Dameron, 42 W. Va. 794, 26 S. E. 527, 57 A. S. R. 884.

Note: 100 A. S. R. 393.
And see infra, par. 34.

89, 33 Pac. 737, 37 A. S. R. 32.
5. Borland v. Nevada Bank, 99 Cal.

6. Tennessee Bond Cases, 114 U. S. 663, 5 S. Ct. 974, 1098, 29 U. S. (L. ed.) 281; Parker v. Carter, 91 Ark. 162, 120 S. W. 836, 134 A. S. R. 60; Borland v. Nevada Bank, 99 Cal. 89, 33 Pac. 737, 37 A. S. R. 32; Ryan v. 3. Lovett v. Eastern Oil Co., 68 W. Dunlap, 17 Ill. 40, 63 Am. Dec. 334.

2. See COURTS, vol. 7, p. 1056.

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