Farrell v. Fritschle

Scott, Judge,

delivered the opinion of the court.

This was a suit upon a negotiable promissory note by endorsee against maker and endorsers. Upon the trial it appeared that the suit was brought within the period of twenty days from the maturity of the note. The court gave judgment for the amount due on the face of the note, with damages at four per cent., and interest on the sum of the principal and damages from maturity. The allowance of the four per cent, damages is the matter of which complaint is made.

The eleventh section of the act concerning bills of exchange provides that “in cases of non-acceptance or non-payment of a bill drawn at any place within this state on any person at a place within the same, no damages shall be recovered, if payment of the principal sum, with interest and charges of *191 protest, be paid within twenty days after demand, or notice of the dishonor of the bill.” The fifteenth section of the act places negotiable promissory notes on the same footing as inland bills of exchange, if the notes are negotiated.

As this suit was brought within twenty days from the maturity of the note, we can not see that the plaintiff had any right to the four per cent, damages at the time of bringing his suit. If he has commenced his suit for damages before they were due, he can not recover. Judge Napton concurring, the judgment will be reversed and judgment will be rendered for the principal and interest without the four per cent, damages, and the costs of this court will be paid by the plaintiff.