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Gossard v. Gossard.

April 27, 1945

GOSSARD
v.
GOSSARD.



Phillips

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

On March 29, 1944, Sarah L. Gossard, as administratrix of the estate of J. W. Gossard, deceased, commenced an action against H. W. Gossard on the following instrument in writing:

"Chicago Jan 30, 1903

"Due J. W. Gossard, on demand ten thousand $10,000.00) of The H. W. Gossard Co. - stock which I now hold.

"H. W. Gossard."

In her complaint the administratrix alleged that on or about January 30, 1903, H. W. Gossard received from J. W. Gossard "ten thousand dollars of the H. W. Gossard Company stock"; that, thereupon, H. W. Gossard executed and delivered the above instrument to J. W. Gossard; that on June 5, 1943, the administratrix, as the guardian of J. W. Gossard, prior to his decease demanded that H. W. Gossard deliver such stock and that the latter refused so to do.

H. W. Gossard interposed a motion to dismiss the action on the ground that the complaint failed to state a claim against him upon which relief could be granted. The trial court sustained the motion and dismissed the action. The administratrix has appealed.

The law of the place where a contract is made governs its nature, validity, and interpretation, unless it appears that the parties, when entering into the contract, intended to be bound by the law of some other place.*fn1

An Illinois statute, in force at the time the instrument was executed, in part provided:

"All promissory notes, bonds, due bills and other instruments in writing, made * * * by any person * * * whereby such person promises or agrees to pay any sum of money or articles of personal property, or any sum of money in personal property, or acknowledges any sum of money or article of personal property to be due to any other person, shall be taken to be due and payable, and the sum of money or article of personal property therein mentioned shall, by virtue thereof, be due and payable as therein expressed."*fn2

Under this statute the instrument was a due bill and it possessed the characteristics of a promissory note.*fn3 Counsel for H. W. Gossard assert that, since the due bill was payable on demand, the cause of action accrued and the statute of limitations commenced to run on the date of the delivery of the instrument.It is a general rule that a negotiable instrument, payable on demand, becomes due immediately and that the statute of limitations begins to run from the date of its execution and not from the date of the demand.*fn4

However, we do not regard the general rule as applicable in this case. In Stewart v. Smith, 28 Ill. 397, 407, the court held: "When the instrument is for the delivery of property, a demand before suit must be alleged and proved." If the transaction constituted a bailment, the rule in Colorado is, the statute does not begin to run until after the demand. Bowes v. Cannon, 50 Colo. 262, 116 P. 336, 339; Schwartz' Estate v. Silvey, 101 Colo. 336, 73 P.2d 994, 996.*fn5

But, where a demand is a condition precedent to the right to bring an action, and the time of such demand is within the control of the promisee, he is under the duty to make it within a reasonable time.*fn6 Otherwise, such a promise might be kept on foot indefinitely at the will of the promisee. The promisee cannot postpone the demand indefinitely and by his procrastination keep alive claims that would otherwise ...


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