(Or., 179 Pac. 916.) in the place where the drawee bank is situated expires at the close of the next business day. [See 5 R. C. L. 509.] Limitation of actions effect of statutes providing special liability. 6. The barring of a right of action upon a check by lapse of the limita tion period is not prevented by a statutory provision that a check must be presented within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay. [See 17 R. C. L. 727.] APPEAL by plaintiff from a judgment of the Circuit Court for Multnomah County (Kavanaugh, J.), sustaining a demurrer to the complaint in an action brought to recover the amount alleged to be due on a bank check. Affirmed. Statement by Burnett, J.: The principal allegations of the complaint are here set down: "That on or about the 14th day of March, A. D. 1907, the defendant made his check in writing, dated on the said 14th day of March, 1907, payable to the order of the plaintiff herein, and delivered the same to this plaintiff, which said check is in words and figures following, to wit: "No. 680. Portland, Or., March 14, 1907. "Merchants' National Bank of Portland, Oregon: Pay to E. K. Colwell or order $1,500.00 fifteen hundred dollars. "[Signed] Geo. L. Colwell. "That said check was presented for payment on the 20th day of February, 1917, to the said Merchants' National Bank of Portland, Oregon, now doing business under the name of the Northwestern National Bank of Portland, Oregon, and payment of the same was refused, and the same was not paid, and the said defendant refused to honor or pay the same." In addition thereto it is said that due notice of the dishonor of the check was given to the defendant, that it has not been paid, and that the face thereof is due to the plaintiff. The court sustained the following demurrer to the complaint: That it does not state facts sufficient to constitute a cause of action against the defendant, and that the action has not been commenced within the time limited by the laws of the state of Oregon. From the ensuing judgment the plaintiff appeals. Messrs. Frank T. Collier and James L. Hope for appellant. Mr. Jay Bowerman, for respondent: Where a right of action depends upon demand being made, and there are no special circumstances which excuse the party from making a demand, and the same is not made within the time prescribed by the Statute of Limitations, then the right of action is barred. Ball v. Keokuk & N. W. R. Co. 62 Iowa, 753, 16 N. W. 592; Winchester & L. Turnp. Co. v. Wickliffe, 100 Ky. 531, 66 Am. St. Rep. 356, 38 S. W. 866; Atchison, T. & S. F. R. Co. v. Burlingame Twp. 36 Kan. 628, 59 Am. Rep. 578, 14 Pac. 271; Palmer v. Palmer, 36 Mich. 487, 24 Am. Rep. 605; Landis v. Saxton, 105 Mo. 486, 24 Am. St. Rep. 403, 16 S. W. 912; Wey v. Schofield, 53 Kan. 248, 36 Pac. 333; 25 Cyc. 1207. Where a demand is prerequisite to the running of the Statute of Limitations, it is presumed to have been made after the lapse of a reasonable time. Hamilton v. Hamilton, 18 Pa. 20, 55 Am. Dec. 585. The Statute of Limitations begins to run in favor of the drawer of an ordinary bank check at the latest upon the expiration of a reasonable time for presenting the check for payment, whether the drawer is injured by the delay in presentment or not. Scroggin v. McClelland, 37 Neb. 644, 22 L.R.A. 110, 40 Am. St. Rep. 520, 56 N. W. 208; Morse, Banks & Bkg. 3d ed. 402A. A reasonable time for presenting the check in question would have expired at the close of business on the first banking day following the date of the check. 2 Dan. Neg. Inst. 6th ed. § 1590. Where a check has not been presented within a reasonable time, the burden is on plaintiff to prove that no injury has been suffered by the drawer. 2 Dan. Neg. Inst. 6th ed. § 1588; Nelson v. Kastle, 105 Mo. App. 187, 79 S. W. 730. Burnett, J., delivered the opinion of the court: a It will be observed that the check was presented for payment nine years, eleven months, and six days, after its delivery to the payee. It was made in Portland, Oregon, and directed to a bank in the same city. Under these circumstances this court has laid down the rule in Matlock v. Scheuerman, 17 L.R.A. (N.S.) 747, and note (51 Or. 49, 93 Pac. 823), thus: "What is reasonable time has been fixed by judicial decisions. As between the drawer and payee the rule is that, when the payee to whom the check is delivered receives it in the same place where the bank on which it is drawn is located, he may preserve recourse against the drawer by presenting it for payment at any time before the close of banking hours on the next day"-citing 2 Dan. Neg. Inst. 5th ed. § 1090. A check is an instrument designed for use presently, and not for a permanent investment. If A owes B a sum of money, the latter must commence his action within six years; but, if A gives his check to B, this does not alter the circumstances in that respect beyond the requirement that the holder of the check must present it within a reasonable time. The statute declares that, except upon a judgment or a sealed instrument, an action must be commenced within six years upon "a contract or liability express or implied." L. O. L. § 6. Checkpurpose of. This provision is for the benefit of the drawer as well as of any other party to a check. The instrument is one upon which a possible -necessity of action may be founded. If the whether or not she had a reasonable time within which to accept or reject it, Mr. Justice Bean says: "The more serious objection to the instruction, however, is that it left the question whether the defendant had a reasonable time after the presentation of the claim in which to allow or reject it as one of fact for the jury." After mentioning the date of presentment as April 18, 1901, and the commencement of the action as September 28th following, the court says: (Or. —, 179 Pac. 916.) considered to be reasonable time in respect to a given subject, the question is one of law, and the duty of the jury is confined to finding the simple facts. Where, on the other hand, the law does not, by the operation of any principle or established rule, decide upon the legal quality of the simple facts, or res gestæ, it is for the jury to draw the general inference of reasonable or unreasonable in point of fact. In such cases the legal conclusion follows the inference of facts; in other words, the question as to reasonable time, etc., is one of fact, and the time is reasonable or unreasonable in point of law, according to the finding of the jury in point of fact. Although in the class of cases under consideration the question is sometimes submitted to the jury as one of fact, the courts manifest a strong inclination, generally, to treat it as one of law for the sake of that uniformity of decision which is deemed so necessary in all questions of commercial law. But there is no lack of authority to the effect that ordinarily the question is one for the jury's determination. The frequently approved rule is that, where the facts are in dispute, it is a question for the jury to determine whether the note was presented in a reasonable time to the maker for payment, so as to bind the indorser, but that, where they are ascertained, it is a question for the court, and cannot properly be submitted to the jury as a question of fact." There are many cases which hold that, under all circumstances, what is a reasonable time is a question of law for the courts. In respect to commercial paper, the authorities are practically unanimous on the proposition that, where all the facts are ascertained, either by the pleadings or by special verdict, the court must decide the question as one of reasonable time. law. Discussing the subject in Goltra v. Penland, 45 Or. 254, 77 Pac. 129, treating of a case involving the presentment of a claim to an administratrix, and Trial-question for court "So that it is admitted by the record that it was almost six months from the time of the presentation of the claim to the commencement of the action; and, as there was no reason offered by the defendant for her delay in not passing upon the claim, the question as to whether she had had a reasonable time in which to do so was for the court, and not for the jury. 'Generally, what is a reasonable time,' says Mr. Justice Strahan, in Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086, 'when the facts are undisputed, is a question of law for the court.' The same rule is stated by Mr. Justice Wolverton in Howell v. Johnson, 38 Or. 571, 64 Pac. 659. "It is undisputed that the claim was presented to the executrix by the 1st of April, and was in her possession six months later, when the action was commenced. This was clearly a reasonable length of time in which to determine whether she would allow or reject it. The court should have so declared as a matter of law, and not left the question for the jury." The following authorities teach the same doctrine: Hadduck v. Murray, 1 N. H. 140, 8 Am. Dec. 43; Mohawk Bank v. Broderick, 13 Wend. 133, 27 Am. Dec. 192; Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372; Utica 372; Utica Bank v. Bender, 21 Wend. 643, 34 Am. Dec. 281; Ransom v. Mack, 2 Hill, 587, 38 Am. Dec. 602; Prescott Bank v. Caverly, 7 Gray, 217, 66 Am. Dec. 473; Hill v. Hobart, 16 Me. 164, 168; Good win v. Davenport, 47 Me. 112, 74 Am. Dec. 478; Phoenix Ins. Co. v. Allen, 11 Mich. 501, 83 Am. Dec. 756; Walker v. Stetson, 14 Ohio St. 89, 84 Am. Dec. 362; Parker v. Reddick, 65 Miss. 242, 7 Am. St. Rep. 646, 3 So. 575; Turner v. Iron Chief Min. Co. 17 Am. St. Rep. 168, and note (74 Wis. 355, 5 L.R.A. 533, 43 N. W. 149); Anderson v. Gill, 79 Md. 312, 25 L.R.A. 200, 47 Am. St. Rep. 402, 29 Atl. 527; Moxley v. Moxley, 2 Met. (Ky.) 309, 311; McFadden v. Henderson, 128 Ala. 221, 29 So. 640; Johnson v. Arrigoni, 5 Or. 485; Collins v. Keller, 62 Or. 169, 124 Pac. 681. There are many cases in our own reports, such as Hindman v. Rizor, 21 Or. 112, 27 Pac. 13; Low v. Rizor, 25 Or. 551, 37 Pac. 82; Nevada Ditch Co. v. Bennett, 30 Or. 59, 60 Am. St. Rep. 777, 45 Pac. 472; and Seaweard v. Pacific Livestock Co. 49 Or. 157, 88 Pac. 963, which announce that what is a reasonable time is a question of fact under all the circumstances of the case. These, however, were equity cases. The question was, What was a reasonable time in which an appropriator of water could employ the same for a beneficial purpose? and the court itself decided whether the time described by the evidence was reasonable or otherwise. It can matter little in such cases whether it be treated as a question of fact or of law, or of mixed law and fact, because the whole controversy is decided by the court. It is important that the law of commercial paper, affecting so strongly, as it does, the business of the country, should be as certain as possible. Besides this, in ordinary commercial paper transactions, the essential facts are much more nearly uniform than in others, like, for instance, the useful application of water, and call for more definite standards. For such reasons, the decisions have narrowed the rules until the result is that, where the facts are admitted or established beyond dispute, the court must apply the law. Hence we say that, since the facts in the present case are admitted by the demurrer, it is for the court to say as a matter of law what was the reasonable time necessary to be observed. The case upon the record is equivalent to one where a jury had returned a special verdict in the language of the complaint, making it incumbent upon the court to render the proper judgment thereon. We do not decide that in all cases, without exception, the question of reasonable time is purely one of law. Even as affecting commercial paper, controversies about the facts often may arise, making the issue one of mixed law and fact, to be decided by the jury under proper instructions by the court. The principle governing such a case as this is that, when the facts are admitted or conclusively established, the court should declare the law resulting from those facts in respect to the reasonableness of the time involved. When, therefore, as appears on the face of the complaint before us, the check was delivered and accepted in the city where the drawee bank is situated, the reasonable time expired at the close presentation. Limitation of bank check. of the next business Check-time for day, as stated in Matlock v. Scheuerman, 17 L.R.A. (N.S.) 747, and note (51 Or. 49, 93 Pac. 823). If beyond that the holder delays presentment for six years, the Statute of Limitations, considered as one of repose, stills any effort to enforce the liability of the drawer. The holder cannot thus keep the check indefinitely as a men- actions-on ace to the drawer, in defiance of the law requiring presentation within a reasonable time and thus extend the Statute of Limitations ad libitum. itations ad libitum. Consequently presentment is mandatory, and cannot be dispensed with, so that, if more than six years have been allowed to lapse where all parties, including the drawee, are in the same city, no action can be maintained upon a presentment made after that time. The principle is thus expressed in (Or., 179 Pac. 916.) 17 R. C. L. 727: "The period of Purcell Bank & Trust Co. v. Byars, time after which the right to bring Okla., 167 Pac. 216; Douglas suit on a check is usually barred is County v. Grant County, 98 Wash. five or six years after the expiration 355, 167 Pac. 928. of a reasonable time for presenting the check for payment." It is so directly decided in Scroggin v. McClelland, 37 Neb. 644, 22 L.R.A. 110, 40 Am. St. Rep. 520, 56 N. W. 208. The same doctrine is taught in Dolan v. Davidson, 16 Misc. 316, 39 N. Y. Supp. 394. In that case, indeed, there was involved a statute computing the period of limitation from the time when the right to make a demand arose, where a demand was necessary to sustain an action, but the court held that the enactment was no more than a codification of the previous rule. Before an action can be maintained against a drawer upon a check, demand for its payment must be made upon the drawee bank. Such demand, however, cannot be deferred indefinitely. That a demand necessary to support a cause of action must be made within the Statute of Limitations is taught in the cases here noted. Morrison v. Mullin, 34 Pa. 12; Clements v. Lee, 8 Tex. 374; Thompson v. Whitaker Iron Co. 41 W. Va. 574, 23 S. E. 795; Codman v. Rogers, 10 Pick. 112; Palmer v. Palmer, 36 Mich. 487, 24 Am. Rep. 605; Meherin v. San Francisco Produce Exch. 117 Cal. 215, 48 Pac. 1074; First Nat. Bank v. King, 60 Kan. 733, 57 Pac. 952; Sheaf v. Dodge, 161 Ind. 270, 68 N. E. 292; Hitchcock v. Cosper, 164 Ind. 633, 73 N. E. 264; Grotefend v. May, 33 Cal. App. 321, 165 Pac. 27; Caner v. Owners' Realty Co. 33 Cal. App. 479, 165 Pac. 727; The plaintiff relies on § 6019, L. O. L.: "A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay;" and contends that the only relief for the drawer is to recoup any damage he may have suffered by the delay in presenting the check. This provision must be taken, however, in connection with other equally cogent rules on the subject of limitations, already noted, and must be construed so that both shall stand. We conclude that the excerpt quoted refers to conditions and effect of statutes providdelays happening ing special before the six-year liability. period of limitations expires. Under this section, the effect of delay not extended beyond the Statute of Limitations is to release the drawer of a check only to the extent of the damages he has suffered; but another result is that, if presentment is postponed beyond the sixyear period fixed by law, and no excuse for it is shown, he is discharged by operation of the Statute of Limitations. The plaintiff, by failing to make the necessary demand on the bank within the Statute of Limitations, allowed her claim on the defendant to lapse. The judgment of the Circuit Court is affirmed. McBride, Ch. J., and Benson and Harris, JJ., concur. ANNOTATION. When Statute of Limitations begins to run in favor of drawer of check. In general. The holding in the reported case (COLWELL V. COLWELL, ante, 876), that the Statute of Limitations begins to run in favor of the drawer of a check, so as to bar a suit thereon 4 A.L.R.-56. against him, at the time the check should be presented for payment, which is a reasonable time after delivery of the check, is not opposed by any of the cases in which the question has been directly decided, assuming |