Boykin v. Bank of Mobile, 72 Ala. 262

Boykin v. Bank of Mobile

72 Ala. 262 | Ala. | 1882

BBIOKELL, O. J.

It is the province of the court to construe written instruments, and declare their legal effect. But, when the legal operation and effect of an instrument depends, not only on the meaning and construction of its words, but upon collateral facts in pais, and extrinsic evidence, the inference of fact to be drawn from the evidence should be submitted to the jury. — 1 Brick. Dig. 428, § 2. Whether, in the present case, it should have been submitted to the jury to determine from the evidence when it was intended the note should be due and payable, it is not important to consider. The evidence was addressed to the court only, without objection, and was passed upon ; and the court could, therefore, draw all such inferences as the jury could have drawn properly.

A promissory note ought, regularly, to express upon its face the time at which it is payable; but, if no time is expressed, and there is not a plain manifestation of an intention to express a day of payment, the law intervenes, and implies that it is payable on demand. — Story on Prom. Notes, § 29. Or, if a blank is left on the face of the note, for the insertion of a day of payment, and in this imperfect condition it is delivered by the maker to the payee, the latter is clothed with a discretionary authority to insert such day of payment as he may choose. Mitchell v. Culver, 7 Cowen, 336. Or, if a certain day of payment is intended, and by mistake or inadvertence omitted, the holder may insert it, and the insertion is not an unauthorized, material alteration, which will vitiate the note.—Boyd v. Brotherson, 10 Wend. 93.

This note can not, without violence to the intention of the maker, as shown upon its face, be regarded as payable on demand; nor does there seem to have been a blank left for the insertion of a day of payment; nor is there direct evidence of an intention or agreement to make it payable at a particular time. The proposition pressed by appellant is, that the note is consequently void for uncertainty. The law leans against the destruction of contracts because of uncertainty, and they are not suffered to perish, unless, after reading and interpreting *270them in the light of the circumstances under which they were made, the intention of the parties can not be fairly and reasonably collected and effectuated.—Robinson v. Bullock, 58 Ala. 618. Words may be supplied, or may be rejected, when necessary to carry into effect the reasonable intention of the parties. In Chitty on Bills, 151, it is said : “ Where there is contradiction^ ambiguity, or uncertainty in the terms of the instrument, it may, especially against the party making or negotiating it, be so construed as to give effect to it according to the presumed intention of the parties.” In illustration, reference is made to the case in which the note read, “ Borrowed of J. S. 50¿6, which I promise never to pay; ” and it was decided, that the word never must be read as ever, or wholly rejected. In Coles v. Hulme, 8 B. & C. 568 (15 Eng. C. L. 299), the word pounds was supplied, to effect the manifest intent of the parties. In Evans v. Steele, 2 Ala. 114, a promissory note was made in 1831, payable first of January “ one thousand forty.” By intendment, giving effect to the presumed intention of the parties, who are not supposed to be doing things which are vain and useless, the court did not hesitate to supply the words eight hundred, and read the note as payable January first, 1840. In White v. Word, 22 Ala. 442, the note read : “ One day after I promise to pay,” &c., and was declared upon generally, as payable one day after date. It was said : “ The court will supply the word date, and intend the note was payable one day after its date.” A decision similar in effect rvas made in Pearson v. Stoddard, 9 Gray, 199; and in Coolbroth v. Purinton, 29 Maine, 469, the word dollars was supplied, making the instrument that which it was morally certain the parties intended, a promissory note for the payment of a certain sum of money.

In the cases referred to, the instruments of themselves furnished the means for the correction of the errors, or .supplying the omissions. This note does not furnish the means of removing the uncertainty or obscurity as to the day of payment which was intended, and which was omitted, presumably by inadvertence. It is very dearly settled, as is insisted by the counsel for the appellant, that parol evidence is inadmissible to explain a patent ambiguity, where the doubt arises on the face of the instrument. But parol evidence is admissible to aid in ascertaining the intention of the parties. Wills áre often construed by the aid of evidence of the situation of the testator, the condition of his family, and of other circumstances surrounding him at the time of execution. “ Contracts,” it is said by C. J. OiiiltoN, in Pollard v. Maddox (28 Ala. 325), “ must, be interpreted in the light of surrounding circumstances. The occasion which gives rise to them, the relative position of the parties, and their obvious design as to the objects to be accom*271plished, must be looked at, in order to arrive at their true meaning, and to carry out their intention if lawful.”

The fact is not controverted, that the maker of the note intended the loan of his credit to the payees, to aid them in the transaction of their business as commission-merchants in the city of Mobile; and it is apparent that the making of negotiable paper was the form he intended the loan of credit to assume. The note is expressed to be payable and negotiable at a bank in the city. It may from these facts be safely . assumed, that it was intended the note should be. payable at such time as notes negotiable in bank were usually made payable, and not at such a remote period that it would be incapable of negotiation. The evidence of the time negotiable paper the banks would accept had to run, was material, to aid in determining the period of time it was intended should have been expressed for the payment of the note. That fact, taken in connection with the fact that no paper was taken for seventy-five weeks, months, or years, reduced it to a moral certainty, that the word omitted from the note was days, and that the note should be read and construed, as if that word immediately succeeded the numerical adjective seventy-five.—Conner v. Routh, 7 How. (Miss.) 176; Nichols v. Frothingham, 45 Me. 220.

The principle is well established by our decisions, that receiving negotiable paper as collateral security for the payment of a pre-existing debt, is not acquiring it in the usual course of business, and for a valuable consideration, entitling the holder to protection against the equities and defenses of the maker. 1 Brick. Dig. 276, §§ 347-8; Connerly v. P. & M. Ins. Co., 66 Ala. 434. The authorities generally recognize accommodation paper, made for the purpose of enabling the payee to obtain credit from third persons (not by the agreement of the parties limited to an application to specific uses), as an exception to the rule; but a creditor, taking such paper as security for a pre-ex-isting debt, may enforce it, notwithstanding the want of consideration between the original parties. — 2 Am. Lead. Cases, 242. The exception is not recognized in this court, and the holder of such paper, taken upon no other consideration than as collateral security for a precedent debt, is subject to the defense of a want of consideration, which could be made as between the original parties.—Miller v. Boykin, 70 Ala. 469. The taking of such paper as collatéral security for a debt presently created, is acquiring it in the usual course of business, upon a valuable consideration, entitling the holder to protection against equities ,or defenses existing between the original parties, of which he does not have notice.-Connerly v. P. & M. Ins. Co., supra; MiUer v. Boykin, supra.

The point of contention between the parties, in the City *272Court, was upon a matter of fact, which, seems to have assumed two phases. The first was, whether the loan to James & Co. was complete, before the note in suit was transferred to the bank; and the second was, whether, if the loan was complete, the giving collaterals for its security was not a consideration inducing the bank to part with its money. As bearing upon these questions, we can not say that the fact that no portion of the money loaned was drawn from the bank, until after the collaterals were transferred, was irrelevant.

"We remain of the opinion expressed in Miller v. Boykin, supra, that it is not essential, to constitute the bank a bona fide holder, the note in suit should, at the time of the loan, have been specified as one of the collaterals which would be transferred. It was security for which the bank was stipulating; security in the form of notes or bills the payees were capable of transferring, and which would be available if they made default in payment; and it was security in that form the payees stipulated to give. When the notes were transferred to, and accepted by the bank, the agreement of the parties was rendered specific and certain, and the bank became a holder for value.

We find no error in the rulings of the City Court, and its judgment must be affirmed.