Fletcher v. Blodgett

16 Vt. 26 | Vt. | 1844

The opinion of the court was delivered by

Redfield, J.

It is not necessary, I apprehend, in the present case, to examine the question how far a memorandum, at the bottom of a note or bill, of the place of payment merely, is to be considered a part of the contract. The conflict in the decisions of the English courts, as well as the American, (which in England was put at rest by the statute of 1 and 2 George IV, and, as is supposed, in this country, by the decision of the United States Supreme Court in Wallace v. McConnell, 13 Peters, 136,) has led to some evasive decisions in regard to the effect of a mere memorandum of the place of payment. Williams v. Waring, 21 Eng. Com. Law 11, which professes to follow the case of Exon v. Russell, 4 M. & S. 505, treating such a memorandum as a nullity, is a case of that character. This subject, of the necessity of the presentment of a bill, or note, at the place of payment, is very elaborately discussed by Chancellor Kent in a note to the last edition of his Commentaries, vol. 3, page 99, and the effect of such a memorandum is also incidentally alluded to by him, and the cases fully collected, at page 98. In this state it was decided many years since that such presentment was not necessary in the case of a promissory note, in order to recover against the maker. Hart et al. v. Green, 8 Vt. 191. In regard to the question of the effect of such a memorandum in charging .an indorser, the question is still open, and is not necessary to be here decided.

But in regard to the question whether a memorandum, at the bottom of the note, or bill, has the same effect as if inserted in the body of the contract, when the memorandum contains any thing more than the place of payment, the cases are all one way, so far as they have come under the consideration of the court. By this is meant those memoranda which are made at the time of signing the contract, (and it is to be presumed that they were then made, unless the contrary appear,) and which form important qualifications; and especially when these are for the ease of the maker. The cases from Massachusetts of Jones v. Fales, 4 Mass. 245, and Heywood v. Perrin, 10 Pick. 228, fully sustain this view.

We do not perceive why the case of Henry v. Coleman, 5 Vt. 402, is not an authority, in principle, controlling the present case. It is true the condition, or memorandum, was there written, as would seem, upon the back of the note. But why that should vary the effect of it is not easily perceived. Courts must view these matters, in some sense, as business men do, else we could never hope to do justice between the parties to contracts. Contracts must be so interpreted as to speak the sense of the parties.' How then is it possible to imagine that the defendant in this case, or the plaintiff, even, at the time of taking the note, considered it to be an’ absolute promise to pay a sum of money one day after date., when, by a memorandum in the margin, it was expressly made payable in fulled cloth, one year from the month of October after date. All the important portions of the contract are expressed in the memorandum on the margin. And in looking at the original contract, which is sometimes important in giving it a construction, unless we would make ourselves slow of understanding in matters which every body else understands at the first blush, there is no difficulty in the case. The parties wished to make a contract, payable in fulled cloth, on time, and, having blank notes at hand made payable generally “ one day after date,” with a large margin, and the word payable printed there, — in order to qualify this payability, when necessary, — they filled the blank with date and sum, and inserted the time and mode of payment in the margin where the blank indicated. It was then signed, without erasing the words “ one day after date.”

We have not thought it necessary to examine at all the question of the sufficiency of the tender, as that might have been kept good during the month of October, and in that case would have been good. Gilman v. Moore, 14 Vt. 457. The case was no doubt decided in the county court upon the insufficiency of the tender; but .as that does not fully appear, judgment is reversed and a new trial granted.