3 Dakota 178 | Supreme Court Of The Territory Of Dakota | 1882
The appellant brought an action in the Second Judicial District Court, for the county of Tanlcton, against the respondent as administrator of the estate of James M. Stone deceased, alleging the death of the said James M. Stone, and the appointment of the respondent as administrator, and further alleging that the said Stone, on July 12, 1879, made his promissory note whereby he promised to pay the Hayworth Fence Company, or bearer, one year after date,' the sum of two hundred dollars, with interest at 10 per cent., and if action be commenced thereon, attorney’s fees for collection; that plaintiff purchased the said note before due without notice.
The answer puts in issue, the negotiability of the instrument, alleges that the same was given without consideration, and that the same was obtained by means of certain false statements and representations of one McKewon, a person representing himself as the agent of the payee.
On January 20th, 1882, the cause was brought on for trial, and after the evidence was concluded upon both sides, the court among other matters charged the jury as follows:
“ It is a necessary quality of negotiable paper that it should be “ simple, certain and unconditional. And I instruct you that the “ note sued upon is not such a one as to exclude equities in the “ hands of third parties, if purchased before due.”
To the giving of said instructions the plaintiff excepted. The jury returned a verdict for the defendant, and judgment was entered against the plaintiff for the costs. From this judgment the plaintiff appeals to this court.
How far this question of embracing in a promissory note an additional contract, affects its negotiability, is not a new one in the courts of the different states.
The courts of Indiana, Kentucky, Iowa, Nebraska and Kansas, have decided that notwithstanding the additional contract, the note still remains negotiable. Yet in the most of these states— notably Indiana and Kentucky, this construction is more or less influenced by the peculiar laws of those states, in reference to negotiable instruments.
The appellant cites the case of Nickerson v. Sheldon, decided by the Supreme Court of Illinois, and reported in Yol. 33 of the reports of that state, page 373. The case is not a parallel one, nor does the reasoning of the court sustain the position of the appellant in this case.
The court says, <£ But it is objected that the note sued upon “ was not negotiable under the statute. This objection is predi- “ cated on this clause in the instrument.”
££ We further agree, that, if the above note is not paid without ££ suit, to pay ten dollars in addition to the above for attorney’s “ -fees.”
££ It is said this undertaking destroys the instrument as a “ promissory note, since it requires extrinsic evidence to show that
The Supreme Courts of Pennsylvania, Minnesota and Missouri, have decided that such notes as the one sued upon in this case, are not negotiable. In the case of Woods v. North, reported in 84 Pa. St. Reps., on page 410, where an action was brought on a note containing a provision for five per cent, collection fee, if not paid when due, the court says: “ But a collateral agreement as ££ here, depending too as it does upon its reasonableness, to be de- ££ termined by the verdict of a jury, is entirely different. It may ££ be well characterized, like an agreement to confess a judgment “ was by Chief Justice Gibson, as ££ luggage,” which negotiable “ paper, riding as it does on the wings of the wind, is not a courier ££ able to carry. If this collateral agreement may be introduced ££ with impunity, what may not be? It is the first step in the ££ wrong direction which costs. Those instruments may come to ££ be lumbered up with all sorts of stipulations, and all sorts of ££ difficulties, contentions and litigation result.”
In the case of Jones v. Radity, decided by the Supreme Court of Minnesota, and reported in Vol. 6, of N. W. Rep., page 800,
We believe that promissory notes, to be negotiable, must be unin-cumbered by collateral agreements to be determined by a jury,
But independent of these conflicting decisions, and independent of the common law upon this question, the law of this territory provides, in the Civil Code under the title of “ Negotiable Instruments,” as follows-:
“ Section 1821: A negotiable instrument is a written promise “ or request for the payment of a certain sum of money to order “ or bearer in conformity to the provisions of this article.”
“ Section 1822: A negotiable instrument must be made pay- “ able in money only, and without any condition not certain of “ fulfillment.”
“ Section 1827: A negotiable instrument must not contain any “ other contract than such as is specified in this article.”
And again, in section 6 of the Civil Code, “ In this territory “ there is no common law in any case where the law is declared “ by the codes 5
In view of these express declarations in our Code as to negotiable instruments, we are of opinion that the charge of the Judge in the court below was correct. The judgment is
Affirmed.