Henschel v. Mahler, 3 Denio 428

Henschel v. Mahler

3 Denio 428 | Court for the Trial of Impeachments and Correction of Errors | 1846

Johnson, Senator.

I have examined the authority, cited by the chief justice, in his opinion of this case, (Chitty on Bills, 9th Amer. ed. 160,) to ascertain, whether the words “on the 31st of December of this year,” forming a part of the instrument given in evidence, could be rejected as repugnant and absurd. The only principle there referred to that will be found to bear upon this question, is, that when the instrument declared upon or given in evidence, is payable to blank or order, the drawer consents that the owner, or he for whose benefit it was made, may insert the name of a payee, to give effect to the instrument. But I think the same authority shows that no one else could, fill up the blank. This is very different 'from striking out a part of an instrument in writing by the court after it has been transferred, and thus in fact making a new agreement between the *433parties. In Haywood v. Perrin, (10 Pick. 228,) the court lay down the rule for the construction of contracts to be, that every word and clause shall be taken into consideration and have an effect given to it if possible. That was a case of a note made payable on demand; but at the bottom of the note the parties had inserted a memorandum by which one-half of the note was to be paid in twelve months and the other half in twenty-four months. The court, after ascertaining that the memorandum was made by the parties before the delivery of the note, in order to give effect to every part of the instrument, made it read, payable, the one-half on demand after twelve months, and the other half on demand, after twenty-four months. Had the court adopted the opinion that the words payable on demand, and the memorandum, payable one-half in twelve months, and the other half in twenty-four months, were absurd and repugnant the absurdity could easily have been removed on the principle adopted by the supreme court, by rejecting the memorandum, and made it read payable on demand; as the parties intended, should the insolvency of the payor be likely to occur before the end of the twenty-four months. Applying the rule that effect shall be given to every word and clause in a contract, what construction can be put upon the instrument under consideration, so as to give it effect? On the 18th of April, 1839, Dufour Brothers & Co. request Henschel, “ on the 31st October of that year, to pay to the order of themselves, eight thousand seven hundred and fifty-five francs sixty cents, payable in Paris the 31st December of that year, value in themselves, and to charge the same to account as advised.” Now it is perfectly manifest from the whole instrument, that it would be imposible for Mr. Henschel, on the 31st day of Oct. 1839, to pay the drawers or their endorsers in any kind of money known as such, which would become payable the 31st day of December thereafter in Paris. If specie was intended, it would have been available on delivery. If bank notes were intended to represent gold and silver, they would be payable on demand. I infer, therefore, the parties intended that payment should be made on the 31st October, in something other than what is legally *434considered money. Whether such payment was to be by a bill of exchange payable in Paris on the 31st of December, 1839, as the letters of Dufour Brothers & Co. showed, or whether some other mercantile instrument was intended, is perfectly immaterial. The instrument plainly shows that money was not intended, and having ascertained that fact, the court will pronounce the instrument not to be a negotiable bill of exchange. I regret to be obliged to differ with so learned a judge as the late chief justice, especially as the defence in this case is technical. But I believe that the characteristics of negotiable paper have been so well defined and so long established, that we are not at liberty to help the plaintiffs out of a difficulty, by striking out an important part of the instrument, in order to effect what never was intended by the parties. There can be no difficulty in giving effect to the instrument when counted on in the name of the drawers, when if necessary the letters of the parties might properly explain the ambiguity, if any there be. The judgments of the supreme and superior courts should be reversed.

Porter and Spencer, Senators, delivered written opinions in favor of affirmance, on the ground assumed by the supreme court—that the words “ on the 31st Oct. of this year ” should be rejected as repugnant.

On the question being put, “Shall this judgment be reversed?” the members of the court voted as follows:

For reversal: Senator Johnson.

For affirmance: The President, The Chancellor, and Senators Barlow, Emmons, Hand, Hard, Lester, Lott, Mitchell, Porter, J. B. Smith, S. Smith, Spencer, Talcott and Wheeler—15.

Judgment affirmed.