law-demand-notes | payable upon demand, rather than specified date |
C. Are the Notes demand notes?
Initially, appellant contends the Notes are not demand notes and the statute of limitations did not begin to
run until after appellant sent its notice of acceleration. Appellee responds the Notes are demand notes
because they lack a definite time of payment.
Section 3.108 of the Texas Business & Commerce Code provides, in relevant part:
(a) A promise or order is “payable on demand" if it:
(1) states that it is payable on demand or at sight, or otherwise indicates that it is payable at the will of
the holder; or
(2) does not state any time of payment.
(b) A promise or order is “payable at a definite time" if it is payable on elapse of a definite period of time
after sight or acceptance or at a fixed date or dates or at times readily ascertainable at the time the
promise or order is issued . . .
Tex. Bus. & Com. Code Ann. § 3.108 (Vernon 2002).
Citing section 3.108(a)(2) of the Business & Commerce Code, appellee argues that since the Notes state
they are due upon receipt of a notice from appellant requiring payment in full and do not otherwise include
a specific time for payment, they are demand notes and limitations began to run on the date they were
signed. However, to accept appellee's view of the Notes we would have to forget the rules of contract
construction and ignore the language found at the end of Paragraph 4 limiting appellant's ability to demand
payment to when one or more of the conditions listed in Paragraph 7 occurred. Instead of focusing on
such a small portion of the Notes, we must examine and consider the entire writing in an effort to harmonize
and give effect to all the provisions of the Notes so that none will be rendered meaningless. Valence
Operating Co., 164 S.W.3d at 662. While the Notes do not list a specific maturity date, they do contain
conditions which create a readily ascertainable time for payment. Tex. Bus. & Com. Code Ann. § 3.108(b);
see Maceo v. Doig, 558 S.W.2d 117, 120 (Tex. Civ. App.- Austin 1977, writ ref'd n.r.e.) (holding oral
promise to pay in the summer was sufficiently definite to support a finding of a binding extension of the time
for payment of a promissory note); see also Martin v. Fannin Bank, 389 S.W.2d 724, 726 (Tex. Civ. App.-
Houston 1965, no writ) (holding promise to pay once a court had entered a particular order was sufficiently
certain to support finding of a binding extension of the time for payment of a promissory note). Therefore,
we hold the Notes are payable at a definite time as established by the conditions listed in Paragraph 7.
Financial Freedom Senior Funding Corp. v. Horrocks (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)
(Anderson) (real estate litigation, probate law, suit to quiet title, declaratory judgment, demand note, life
estate, reverse mortgages, statute of limitations for foreclosure of lien in real property, deed of trust)
AFFIRMED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00109-CV Financial Freedom Senior Funding Corp v. Michael L. Horrocks, Administrator of Estate
of Mary Edythe Mullane, Deceased
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: WM CAMERON MCCULLOCH