Page:Harvard Law Review Volume 32.djvu/811

775 ACCELERATION PROVISIONS IN TIME PAPER 775 why the holder should not have an option as well as the maker. In either situation, the acceleration is incidental and should not afifect an innocent purchaser. (Even if my third principle is re- jected with its Dunn v. O^Keefe analogy, the inquiry into whether a demand has already been made is much less objectionable than an inquiry whether the maker's father has died, or a machine has been sold. Yet such inquiries into outside facts are permitted by the courts, while a fact in the course of collection of the instrument is held fatal.) Furthermore, the authorities allow an option by the holder to accelerate payment on other instruments.-^"* In an ordi- nary demand note the time of payment is entirely within his con- trol. It is plain that the judgment note cases are too peculiar to have any bearing on this matter of holder's option. The Negotiable Instruments Law with its general "on or before" clause ^"^ certainly seems to settle this point and allow the holder an option, but the decisions since the Act continue to argue that the "insecure" clause makes the "time of payment . . . depend- ent absolutely upon the will and election of the payee" and "'de- pendent on the future volition of one 'other than the maker." "'^ Therefore it is said to be "payable upon a contingency" "^ and in- valid under the last sentence of section four."^ That sentence has no proper application to these instruments, which fall within sub- division two of the same section."^ The decisions are particularly unfortunate in view of their effect upon the form of note sometimes used by savings banks, which fixes a date for payment and adds, "with the understanding that the said Bank may at any time before the expiration of said term call for the payment of the whole or any portion of said money, provided 108 See notes 46 and 47, supra. To these may be added cases of a note payable in such instaUments as the holder may demand, where the time of pa5Tnent is entirely within his control, and yet is held certain. White v. Smith, 77 111. 351 (1875); Stillwell v. Craig, 58 Mo. 24 (1874); President, etc. of the Goshen, etc. Turnpike Road v. Hurtin, 9 Johns. (N. Y.) 217 (181 2); Washington County Mutual Insiu-ance Co. v. Miller, 26 Vt. 77 (1853)- 1"' § 4 (2), see note 113, infra. no puget Soimd State Bank v. Washington Paving Co., 94 Wash. 504, 515, 162 Pac. 870 (1917). 1" Ibid., 511; Iowa' National Bank v. Carter, 144 Iowa, 715^123 N. W. 237, 241 (1909). ^^ "An instrument payable upon a contingency is not negotiable." "* This allows instruments "payable . . . on or before a fixed . . . time."