The first exception taken by the defendants in review, the plaintiffs in the original action, must be sustained. They sued upon a promissory note, and the promisor claimed the allowance, as a partial payment upon it, of the sum of $217. There was evidence that this sum was paid by the indorser of the note, at a time when he was also indebted to the bank upon other notes, to be applied to this note in case the plaintiff in review should furnish security for or pay the balance of it; but otherwise not; and that it was entered at first generally to the indorser’s credit as a deposit, and afterwards, by his consent, applied by the bank to the payment of the other notes. It further appeared that there was a negotiation between the parties to this action respecting the payment of the note, which resulted in nothing. The court instructed the jury that, “if the $217 was left upon condition that it should be applied in part payment of the note only in case Ives should make security for or payment of the balance, and a negotiation ensued between Ives and the bank upon the basis that the money ($217) should first be applied upon the note, and Ives pay the balance, the bank could not afterward deny to Ives the benefit of that sum in payment, although said negotiation fell through.”
We are at a loss fully to understand the meaning attached to the phrase “ a negotiation upon the basis,” in this instruction of the learned judge; and the difficulty perhaps arises from the fact that it is an expression of colloquial use, and not adapted to convey his idea with legal precision. If it means that, if the bank had once actually applied the money to the payment of this note, with the consent of the indorser, or without objection on his part, they could not afterward change its application, and deprive Ives of the benefit of it, it would certainly be correct. But if it conveyed the idea that the bank, by making a proposition to Ives that the payment should be so applied in case he would provide for the balance due, would be bound to make the application if the negotiation failed, it appears to us to have been manifestly erroneous. As we fear that the jury may have acted upon this latter understanding, the verdict must be set aside and a new trial granted.
Exceptions were also taken by the plaintiff in review, which, so far as they may affect the course of a future trial, it is proper to decide:
1. The first was upon an objection made to the reading of the note declared on to the jury, before explaining an apparent alteration upon its face. Whether such an alteration were apparent was a question of fact, to be decided by the judge at the trial upon inspection; and his decision of that fact is not the subject of exception.
2. The plaintiff in review offered evidence tending to prove that, at the time when he signed the alleged note, he received a note of the said Yale for the same amount, as an accommodation note, engaging to pay the same at maturity; and that he did pay the same accordingly. He further offered to prove that, as a memorandum of the transaction, he took the printed blank form of a note, and wrote the figures “ $1585,90,” the date “Dec. 23” in the body of the note, and signed his name at the bottom, the said Yale having written the date “ September 20th 1858,” that he gave it to Yale in that condition as a memorandum only, and upon the express agreement that it should not be used as a note; and that subsequently, without his knowledge or consent, it was filled up by said Yale, and procured to be discounted. The presiding judge ruled that, if the bank discounted the note in good faith, these facts would constitute no defence. It becomes important, then, to see what the paper, as it was a"t first delivered, imported upon its face; and whether it constituted a contract between the parties. 1'f it were a complete and valid contract as it was delivered, it certainly would not be competent for either party to show by paroi that it was not to have the effect of a contract, for this would be tc
Taking the written and printed parts together, the note, as it was delivered by Ives to Yale, reads as follows :
“ §1585.90. Brooklyn, September 20th 1858.
after date promise to pay to the order of Dec. 23, ■ dollars at
value received. Geo. R. Ives.”
After much consideration we are of opinion that this was a promissory note, and that testimony was not admissible to show that it was intended only as a memorandum. It has the signature of a promisor; a date; the words “ promise to pay ” ; a statement of the amount payable; a time of payment; and thus has all the parts of a complete note, except the name of a payee. But in Cruchley v. Clarance, 2 M. & S. 90, it was held that issuing a bill with a blank for the name of the payee would authorize a bona fide holder to insert a name. Lord Ellen-borough said: “ As the defendant has chosen to send the bill into the world in this form, the world ought not to be deceived by his acts. The defendant by leaving the blank undertook to be answerable for it when filled up in the shape of a bill.” And in Crutchly v. Mann, 5 Taunt. 529, a bill was made payable to the order of-, and the court held that any bearer who came regularly by it might fill the blank with his own name. See also Attwood v. Griffin, 1 Ry. & Mood. 425. If it had been passed to the bank by Yale in the condition in which he received it, it would therefore have been a complete note, except the name of a payee, and the bank would have been authorized to fill the blank with any name that they had chosen; and as they took it in good faith, it can make no difference in the rights of any party that the blank was filled by Yale, in order to add his own liability as an indorser.
But delivering the note to Yale in that condition would not of itself give him authority to alter it in any particular in which
3. The plaintiff in review offered to prove that the note was taken by the bank upon a consideration usurious “ by the laws of Connecticut or New York.” As the note was taken in Connecticut, the laws of New York had no operation, and such an alternative offer was not made in a form which the court could be required to adopt.
4. By the settled law of Massachusetts, a party who takes a negotiable instrument in payment of a preexisting debt is regarded as entitled to the same protection as any other taker for a valuable consideration; and this law must govern in a trial in this commonwealth. Blanchard v. Stevens, 3 Cush. 162.
5. The request to the court to allow the jury to take into consideration the appearance of the note, in respect to the alleged alteration, does not appear to have been based upon any fact which required it to be granted.
Exceptions sustained.