Page:Harvard Law Review Volume 32.djvu/812

776 776 HARVARD LAW REVIEW the same is wanted to pay depositors." "^ If the hostile attitude toward holder's option is maintained, such a note would not be negotiable. Chattel Notes The nature of these instruments and the form of the acceleration provision has already been discussed."^ The effect is to give the holder a mortgage upon a chattel in the possession of the vendee as security for the note, and to accelerate payment if the maker does any specified acts which endanger the mortgage Uen, such as sale, removal, or suffering a levy of execution. Very often the holder is expressly given an option to take advantage of the maker's act, but such an option is to be implied in any case since the clause is clearly for his protection, if he thinks he needs it. The maker should not be regarded as having an option to accelerate payment by his own clear misconduct. Sometimes the holder is authorized to seize and sell the collateral, applying the proceeds upon the note, and being able to sue for the deficiency at once. Although, unlike the "insecure" cases, the maker does participate in the acceleration, it is clear that acceleration by this kind of option is more difficult to uphold than that in the installment cases when the holder merely sues. It is also clear that the maker's act is less closely connected with the collection of the instrument than in the installment and other cases, where default of payment brings the acceleration pro- vision into play. Consequently, it is harder to bring these notes within the first principle of this article, and say that the act of acceleration is incident to the collection of the instrument. Other questions arise as to the rights of subsequent purchasers. If the holder can make the note due at once by seizure of a chattel, ex- trinsic evidence is necessary to prove whether the chattel has been seized or not. Therefore, if the purchaser is bound to inquire whether there has been acceleration, he will have to go into extrinsic evidence. Therefore, by the weight of authority these acceleration provi- sions are held to impair negotiability, as rendering the time uncer- tain and containing promises about the chattel which are "in addi- tion to the payment of money." "® The time is said to be uncertain "* This form is used by the Boston Five Cent Savings Bank. 115 Page 749, supra. "* Kimpton v. Studebaker, 14 Idaho, 552, 94 Pac. 1039 (1908, N. I. L.); Iowa Na-