Collins v. Driscoll

Belcher, C. C. The controlling question in this-case relates to the statute of limitations.

The action was commenced on the twenty-fourth day of October, 1882, and was based on a promissory note dated May 1, 1878, and payable one day after date, with interest. In the complaint it was alleged that the note was not in fact made or delivered to plaintiff until the fifteenth day of July, 1879; that during the year 1878, the plaintiff loaned to the defendant sums of money, which amounted in the aggregate to the sum named in the note as principal, and which he verbaljy promised to repay, but made no written promise to do so; that on the fifteenth day of July, 1879, “ the defendant, at his own instance, and without any request from plaintiff, caused said note to be prepared, and he signed and [551]delivered the same to plaintiff without being thereto requested or required by the plaintiff; that said note was antedated as aforesaid at defendant’s own instance, for the reason that defendant wished to pay interest on said principal from the first day of May, A. D. 1878, and at the rate in said note specified.”

The defendant demurred to the complaint, upon the ground that the cause of action was barred by the statute of limitations.

The court at first overruled the demurrer, but afterward reconsidered its ruling and sustained it, and then entered judgment in favor of defendant.

In our opinion, the first ruling was right and the second wrong.

“ In general, it is not essential to a note that it should be dated; and if there be no date, it will be considered as dated at the time it was made. If it be dated, the date will be prima facie evidence of the time when the note was made, but not conclusive.” (1 Parsons on Notes and Bills, 41.)

A note may be antedated or post-dated, and “where the purposes of justice require it, the real date may be inquired into, and effect given to the instrument.” (Story on Promissory Notes, sec. 48; Paige v. Carter, 64 Cal. 489.)

And whatever may be its date, a note takes effect only on delivery. Until it is delivered it is not made in a legal sense, and by it no obligation is imposed on the maker. If the delivery be subsequent to the date, it becomes a valid and binding note on the day of its delivery, and not before.