Page:Harvard Law Review Volume 32.djvu/810

774 774 HARVARD LAW REVIEW • should create no difficulty. Such instruments simply express more fully the effect of paper payable on or before a fixed date at the option of the holder, which is clearly negotiable. It may be argued that the holder's insecurity is an objective fact which must be proved to accelerate payment. However, the phrase seems mere encouragement, and he can exercise his option to demand payment whether he really feels insecure or not. The point is, that insecurity is the usual state of mind accompanying a demand by the holder before maturity, and so is naturally written in here. And even if actual insecurity is necessary, it is not an extrinsic fact which the holder needs to investigate in order to determine whether he can exercise his option. Subsequent purchasers need not inquire about the exercise of the option if they have no notice that it was exercised, for it is incidental, and the analogy of Dunn v. O'Keefe ^^ once more appHes. However construed, the instrument is suitable for circulation, more so. than the ordinary note without an acceleration clause. The value is certain, and even the danger of insolvency is to some extent overcome. Yet the decisions at common law and under the act are almost unanimous against the negotiability of an instrument with this provision.^"^ The argument from common-law principles is that the valid acceleration provisions give the maker some share in the ac- celeration. Either the note is payable "on or before" a date at his option, or else it is due upon his default in the installment and similar cases. The holder may have an option too in the installment cases, but the maker must do something first. Here the time of payment is dependent entirely upon the option of the holder. This distinction seems to me purely technical, especially when the maker's part consists in a breach of contract. There is no reason ^''* 5 M. & S. 282 (1816). See page 761, supra. ^o' Some of the following cases involved "chattel notes," and are indicated by ch. Kimpton v. Studebaker, 14 Idaho 552, 94 Pac. 1039 (1908, N. I. L.) ck. setnble; Smith v. Marland, 59 Iowa, 645, 13 N. W. 852 (1882); Iowa National Bank v. Carter, 144 Iowa 715, 123 N. W. 237 (1909, N. I. L.) ch.; but cf. State Bank of Halstad v. Bilstad, 136 N. W. 204 (Iowa, 191 2, N. I. L.); Third National Bank v. Armstrong, 25 Minn. 530 (1879) cA. semble; First National Bank of New Windsor v. Bynum, 84 N. C. 24 (1881); Reynolds v. Vint, 73 Ore. 528, 144 Pac. 526 (1914, N. I. L.) ch.; Carroll, etc. Bank v. Strother, 28 S. C. 504, 6 S. E. 313 (1887) ch.; Bright v. Offield, 81 Wash. 442, 450, 143 Pac. 159, 162 (1914, N. I. L.), semble; Puget Sound State Bank v. Paving Co., 94 Wash. 504, 162 Pac. 870 (1917, N. I. L.), approved in 15 Mich. L. Rev. 512. See, also, 35 L. R. A. (n. s.), 392, note. Contra, Heard v. Dubuque County Bank, 8 Neb. 10 (1878).