Machado v. Fernandez

Belcher, C. C. The facts of this case, as they are shown by the complaint, are as follows:—

The plaintiff and the defendant were accommodation indorsers of a promissory note, which was made and dated February 26, 1885, and was payable on demand with interest. On the ninth day of July, 1886, the payee of the note demanded payment thereof from the makers, and his demand not being complied with, gave notice of its dishonor to the indorsers. Subsequently the payee brought suit on the note against the makers and indorsers, and thereupon the plaintiff, without any trial of the case, paid to him the full amount due for principal, interest, and costs. This action was then commenced by the plaintiff to enforce contribution from the defendant of one half of the amount so paid.

A general demurrer was interposed to the complaint, [363]and sustained. Judgment was then entered against the plaintiff, and from that judgment he has appealed.

In support of the judgment, it is argued for the respondent, that, as the note was payable on demand with interest, its apparent maturity, under section 3135 of the Civil Code, was one year after its date, and, as it was not presented for payment till more than four months after that time had elapsed, and no reason for not sooner presenting it was shown, the indorsers were released from all liability, and consequently the payment by plaintiff was voluntary, and no cause of action for contribution was thereby created against the defendant.

It is undoubtedly true that a payment, to be the foundation of a claim for contribution, must be compulsory; that is, there must be a fixed and positive obligation to pay. And if one has voluntarily paid money where there was no fixed and positive obligation resting upon him to pay it, he cannot maintain an action for contribution.

The question then is, Did the mere delay in presenting the note in question for payment for more than four months after its apparent maturity release the indorsers from all obligation to pay it?

The rule upon this subject has not been uniform. For example, it was held in this state, before the codes were adopted, that a note payable on demand with interest' must be presented within a reasonable time in order to hold an indorser, and that, in the absence of any showing why the demand was not sooner made, a delay of two weeks was unreasonable. (Keyes v. Fenstermaker, 24 Cal. 329.) On the other hand, it has been held in New York that such a note is a continuing security; that an indorser upon it remains liable upon it until demand is actually made, and that the holder is not chargeable with neglect for omitting to make such demand within any particular time. (Merritt v. Todd, 23 N. Y. 28; 80 Am. Dec. 243; Pardee v. Fish, 60 N. Y. 265; 19 Am. Rep. 176.)