| Mo. Ct. App. | Feb 2, 1891
Lead Opinion
We are asked by this appeal to say whether the following is a negotiable promissory note, viz.:
“§194.25. Lee’s Summit, Mo., December 14,1887.
“ One year after date I promise to pay to the order of Dell Barker, agent, one hundred and ninety-four and twenty-five-hundredths dollars, without interest thereon if paid at maturity. If not paid at maturity to bear ten-per-cent, interest from date. For value received. Negotiable and payable at the Bank of Belton, Belton, Missouri. John E. Watson.”
In my opinion the writing contains, on its face, that certainty as to the amount to be paid necessary to constitute it a negotiable promissory note. “Paper, to be negotiable under the law merchant, must define by its terms what the obligation of the maker is, so that as it passes from hand to hand in the business of the world, it may be ascertainable from the face of the instrument what is demandable from the maker. Windsor Sav. Bank v. McMahon, 38 Fed. Rep. 286. Now, this instrument, absolutely and definitely, declares on its face just what amount shall be paid by the maker at any given time. The stipulation, of no interest to be charged if paid promptly at maturity, but ten-per-cent, from date if not so paid, was intended to encourage prompt payment, and to fix by agreement the damages of default. Interest is defined as the legal compensation or damage allowed for the detention of a debt. ;2 Edw.
While I am free to admit that in Kansas the courts have not been so exacting and rigorous as to negotiable promissory notes as have the courts of this state, yet the decision in Parker v. Pleymell, 23 Kan. 402" court="Kan." date_filed="1880-01-15" href="https://app.midpage.ai/document/parker-v-plymell-7885031?utm_source=webapp" opinion_id="7885031">23 Kan. 402, is quite persuasive here. In that case the promise was to pay interest at twelve per cent, after maturity, and after that promise were these words : “If this note is not paid at maturity, the same shall bear twelve-per-cent, interest from date.”- Judge Brewer, delivering the opinion of the court, says : ‘ ‘ Clearly these words do not destroy the negotiability of the paper. They do not leave uncertain either the fact, the time or the amount of payment. Indeed, up to and including the maturity of the note’, they are entirely without force. They become operative only after the note is dishonored and has-ceased to be negotiable, and then there is no uncertainty in the manner or extent of their operation. They create, as it were, a penalty for non-payment at maturity, and a penalty the amount of which is definite, certain and fixed.”
The instrument we have here is quite different from those condemned in the Missouri decisions, cited and relied upon by defendant’s counsel. The element of uncertainty, there mentioned, grows out of an undertaking, in the body of the note, to pay an additional sum as “attorney’s fees for collection,” or “fees for collection,” etc., as will appear by inspection of the cases: 63 Mo. 35; 64 Mo. 477; 71 Mo. 618" court="Mo." date_filed="1880-04-15" href="https://app.midpage.ai/document/first-national-bank-v-marlow-8006523?utm_source=webapp" opinion_id="8006523">71 Mo. 618; 73 Mo. 35" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/first-national-bank-v-jacobs-8006689?utm_source=webapp" opinion_id="8006689">73 Mo. 35; 83 Mo. 633. The promise contained in the instruments under review in these several cases was to pay an uncertain sum in addition to the principal amount. It could not be said whether or not an attorney would be employed, nor what would be a reasonable fee for collection. The reasoning of the courts in this class of cases is set out
Again, take the matter of an accepted bill of exchange. Our statute provides ( R. S. 1889, sec. 726 ) for certain damages for non-payment by the acceptor. In some cases the holder of the bill of exchange is entitled to recover four per cent., in others ten per cent., and in others even twenty per cent., as damages for non-payment. And now will it be said that, because it may be uncertain whether or not the acceptor of a bill of exchange will pay at the time agreed upon by the acceptance, and thereby save the damages, the bill of
For the reasons, then, hereinbefore indicated, I am of the opinion that the instrument here in question is a negotiable promissory note, and that the judgment of the lower court should be affirmed. Judge Smith concurs in a separate opinion. The judgment, therefore, of the circuit court is affirmed.
Dissenting Opinion
(dissenting). — I am not able to concur with my brethren for the following reasons: In my opinion the instrument in question is not a negotiable note. Among the requisites to the validity of a note is, that there should be entire certainty and precision as to the amount to be paid. 1 Parsons, Notes & Bills, 37. And that the payment of such amount should not depend upon any condition or contingency. Story, Prom. Notes, sec. 22; Edwards Bills & Notes, 141. Nor must the payment of such amount be connected with any uncertain sum. 1 Parsons, Notes & Bills, 37; First Nat. Bank v. Gay, 63 Mo. 33" court="Mo." date_filed="1876-05-15" href="https://app.midpage.ai/document/first-national-bank-v-gay-8005364?utm_source=webapp" opinion_id="8005364">63 Mo. 33. These rules should be enforced in all their rigor. Woods v. North, 84 Pa. St. 407. This note is not for a certain and definite
The rule, Id cerium est, quod cerium reddi potest, is not permitted to come to the aid of such instruments in this state. First Nat. Bank v. Gay, supra, and cases following it. Such rule is repudiated in such cases by 1 Parsons, Notes & Bills, 37; Another consideration aids us in the determination of the question, and that is this, the question here is not whether this is an instrument which can be enforced against the maker, but it is whether it is a negotiable note. Negotiable notes spring from the necessities of commerce. They partake much of the qualities of inland bills of exchange. In the interchange of trade, they take the place of money. 1 Parsons, Notes & Bills, 30, 37; Story, Prom. Notes, sec. 41. They pass by delivery as money, and are the representative of money. People v. Bates, 120 U. S. 565. They should, as near as may be, be as certain upon their face, as to amount, as the stamp upon coin. If, therefore, one should wish to purchase a commodity
Believing the majority opinion to be in conflict with the decisions of the supreme court in First National Bank v. Gay, 63 Mo. 33" court="Mo." date_filed="1876-05-15" href="https://app.midpage.ai/document/first-national-bank-v-gay-8005364?utm_source=webapp" opinion_id="8005364">63 Mo. 33, and First National Bank v. Marlow, 71 Mo. 618, the cause should be certified to the supreme court.
Concurrence Opinion
( concurring). — Negotiable paper, before due, carries the right to the whole amount it secures on its face, and is a circulating credit like the currency of jthe_cojjntry. As was said by Chief Justice Gibson, in Overton v. Tyler, 3 Barr. 346, it is “a courier without luggage.Certainty in the amount is one of the essentials of a negotiable instrument. But the spirit of the rule applies rather to the principal than to the ancillary and incidental additions of interest and exchange. Dan’l on Neg. Inst., sec. 54a. I, therefore, must think that the stipulation in the note here as to the payment of interest in no way impairs or destroys its negotiability.