4 Mass. 245 | Mass. | 1808
Lead Opinion
[*251] * The Court delivered their opinions seriatim as follows: —
Assumpsit on four several promissory notes. Of two of the notes, Fales, the defendant, is the promisor; of the other two he is the endorser, William Clap being the promisor. The objections to the verdict arise on the counts upon these last notes. One of them was payable “ in sixty days and grace,” and the other “ in four months and grace.” They were both lodged for collection in a public bank in Boston, where all the parties to these notes live. On the first day of grace, the bank gave the promisor notice that the notes would be due on the third day of grace, and requested him then to make payment, but did not present the notes. On the third day of grace, the notes not being paid, notice was given to the defendant, the endorser.
The objection is, that there was no demand of payment of the promisor, when the notes were due.
A note of hand is not, by the laws of this state, entitled to grace, unless it be expressly made payable with grace,
But as this condition is implied by law for the benefit of the endorser, like all other conditions, it may be waived by him for whose benefit it was made. And it is contended that in this case the defendant, when he endorsed these notes, agreed that if the notes should be lodged in any bank in Boston for collection, and if the bank should, according to its usage, notify the promisor on the first day of grace, that the notes would be due on the last day of grace, and should request him to make payment, and should [*252] afterwards, on the *last day of grace, notify the defendant, the endorser, that the notes were not then paid, that he would be answerable on his endorsement. Now, if the
The evidence is the usage of the banks- in Boston, of notifying in this manner the promisor and endorser of any note, made payable with grace, and lodged for collection, and the payment by the parties on such notice; and that the defendant was conusant of this usage, and had in other cases conformed to it. This usage, I am satisfied, is evidence of the defendant’s agreement proper to be submitted to the jury, to infer from it the agreement of the de fendant. Evidence of this kind, and for this purpose, is not to establish new law, but to prove that the defendant has waived a condition implied by law for his benefit, and has consented to other terms, to which without question he might have expressly agreed,
The last note is a promise to pay “ six hundred and eighty dollars.” These words nearly complete the line, at the end of whicii is a dash. — Below this line, at the left side of the page, and nearly on the same line with the promisor’s name, are written the words [Foreign Bills] included by brackets. The verdict, being general on all the counts, is objected to, because this last note is not a negotiable note, being made payable, not in cash, but in foreign bills.
It is not clear that we can, as judges, precisely determine the import of the words foreign bills; but I think we may do it with reasonable certainty. It is the common sense of the people, and must be our understanding, that when the word bills is used as a medium or subject of payment, the parties intend bank notes of some description. As judges, we can take notice that several in corporated banks do their business in Boston, and that there are many incorporated banks who do their business in other towns, some at a greater, and some at a less distance from Boston. This notice we have from the public acts of incorporation. We must take notice, in common with the people, that bank notes derive
The next question is, whether these words, thus written and placed, are a part of the promisor’s contract. There is no evidence by whom the body of the note was written, or whether these questionable words were inserted before or after the signature, or by the promisor or promisee. I can, therefore, reason only from the face of the note. And it is a reasonable conclusion, that they must all be taken to be the words of the maker of the note, written before it was delivered to the promisee, and not the words of the promisee, assuring to the promisor any honorary or legal indulgence, either absolute or conditional. If they are the words of the promisor, they must be considered either as idle words, or as a part of the promise to which he gave his signature; or as a subsequent memorandum, explanatory of the manner in which the promise was to be performed. I am not authorized to consider them as words without meaning; and I do not think it material, whether they were part of the original contract, or added in explanation of it. For when the promisee took the note with these words on it, he was subject to the explanation in the memorandum, if it was one, as much as he would be bound by these words, if they were a part of the promise.
The words may secure a benefit to the promisor, and I consider him as stipulating that the money might be paid in foreign bills ; and I consider the promisee, by taking the note thus written, as agreeing to the stipulation.
[ * 254 ] * It is, therefore, my opinion that the note was not, in its original creation, a note for the absolute payment of cash, and so was not negotiable. This opinion, resulting from the
But is the verdict to be set aside for this cause ? The action is by the endorsee against the endorser; and it has been in this state the immemorial usage for endorsees of notes not negotiable to declare against the endorsers as on a negotiable note. This usage may be in a few words explained.
The statute of 3 and 4 Anne, c. 9, was never enacted here; but in practice the provisions of the first section were early adopted, and the form of declaring on negotiable notes resulting from that statute was extended to notes not negotiable. It may, therefore, be considered as the common law of the commonwealth, that, all cash notes are negotiable; and that all notes for merchandise may be sued by the promisee against the promisor, and, when endorsed, by the endorsee against the endorser, who may declare in the same manner as he might if the notes were negotiable,
Upon this principle, the want of negotiability in the note comes to be no objection to the verdict. But it is insisted that this case is an exception to the general rule, because, although the note was admitted in evidence, yet the plaintiff having declared on it as a cash note, it did not support the count. As it is not a cash note, it did not support the count; and if the defendant had objected to it on that ground, the objection must have prevailed. But I am strongly inclined to the opinion that objections to the evidence, as not comporting with the declaration, ought not generally to be admitted, unless the objections were made at the trial, and the point reserved. A contrary practice would introduce much mischief. Had such objection been made at the trial, according to the ancient usage of the Court, in granting amendments at any time before the cause is committed to the jury, the plaintiff might have amended his declaration, and cured the defect, and thereby saved much time and expense to the parties.
But I think there ought to be exceptions to this rule, which as a general rule is correct. If the objection goes to arrest * the judgment, it ought to be heard; because the de- [ * 255 ] fendant may move in arrest of judgment, after he has failed in a motion for a new trial. But this is not the present case. If the declaration unamended had varied the defendant’s defence,
Another exception may be, when judgment according to the verdict will not be a bar to another action on the same contract, on the same breach of it. And I think the defendant’s case is within this exception.
When judgment in one personal action is a bar to another personal action, the cause in both actions must be the same; which must appear from the record, or from the averment of the party pleading. But he cannot aver any thing repugnant to a record, to which he is a party. Now, a contract to pay money, and a contract to pay money’s worth in bills, appear to me to be essentially different, and cannot be averred to be the same contract. And if we were to render judgment on this verdict, it could not be pleaded in bar to an action brought by the plaintiff against the defendant, on the same note, declaring on it as a contract to pay money in foreign bills.
Upon the whole, it is my opinion that the verdict ought to be set aside, and a new trial granted. The plaintiff may then amend, or, if his case will admit of it, explain by evidence, that by the words “ foreign bills ” the parties intended an effect consistent with the negotiability of the note.
Sedgwick, J., declared his concurrence in opinion with the Chief Justice.
[Vide Rev. Stat. c. 33, § 5. — Ed.]
[Such an agreement can hardly be made out from the facts, nor do they appear to be sufficient to control the plain import of the contract. — Blackett vs. The Royal Exchange Assurance Company, 2 Cromp. & Jerv. 244, 249, 250. — Schooner Reeside, 2 Sumner, 567. — Smith vs. Wilson, 3 B. & Ad. 728. — Taylor vs. Briggs, 2 Car. & P. 525. — Homer vs. Dorr, 16 Mass. Rep. 26.—Bryant vs. The Commonwealth Ins. Co., 6 Pick.131. — Leach vs. Perkins, 5 Shep. 462. And see note to Lincoln and, Kennebec Bank vs. Page, 9 Mass. Rep. 157, to Blanchard vs. Hilliard, 11 Mass. Rep. 85, and to Smith vs. Whiting, 12 Mass. Rep. 6. But see City Bank vs. Cutter, 3 Pick. 414. — Smith vs. Whiting, ub. sup. — Lincoln and Kennebec Bank vs. Page, ub. sup. — Blanchard vs Hilliard, ub. sup.—Pierce vs. Butler, 14 Mass. Rep. 303.— Widgery vs. Munroe, 6 Mass. Rep. 449. — Whitwell & Al. vs. Johnson, 17 Mass. Rep. 449. — Odiorne vs. Maxcy, 13 Muss. Rep. 181. — Loring vs. Gurney,5 Pick. 15.— Tibbetts vs. Sumner, 19 Pick. 166. — Parrott vs. Thacher, 9 Pick. 426. — Meldrum vs. Snow, 9 Pick. 445. — Stevens vs. Reeve, 9 Pick. 198. — Dwight vs. Whitney, 15 Pick. 179. — Hartford Bank vs. Stedman, 3 Conn. Rep. 489. — The Bank of Columbia vs. Fitzhugh, 1 Har. & Johns. 239. — Pearson vs. Bank of the Metropolis, 1 Peters, 93 — Raborg vs. Bank of Columbia, 1 Har. & Johns. 231. — Ed.]
6) [There seems to be nothing to justify this addition to the plain and intelligible terms of the promissory note. — See Pierce vs. Butler, 14 Mass. Rep. 303.— Ed.]
[It may well be questioned whether the instances in which such actions had been at this time sustained, proved any thing more than sheer ignorance of the law. The practice of the profession and of the courts, in the times referred to, was too irregular and uncertain to afford any sound rule, or establish any law, relative to this matter And, aside from the statute of 3 and 4 Anne, c. 9, it is not easy to distinguish as to its effect between a promise, in the form of a promissory note, and any other simple con tract, where the consideration in pleading must be set forth. —Ed.]
Concurrence Opinion
I concur in the opinion for granting a new trial, because the words “ foreign bills,” at the bottom of the note declared on, appear to be susceptible of an explanation which may operate to vary the tenor and state of the contract; but unexplained, I think them words of no meaning applicable to the original con- [ * 256 ] tract. The defendant * proposes to show by mercantile usage, or by other evidence, that these words are a part of the original contract; and the plaintiff insists, on the other hand, that they are to be understood as a collateral and distinct engagement, not applicable to the contract, as it now appears, in the hands of an endorsee.
I think there ought to be an opportunity for this explanation, which was in effect precluded at the trial. If the underwritten words make a part of the original contract, the writing given in evidence at the trial is not competent to support either of the counts in the plaintiff’s declaration. But if not so explained, by evidence
Thatcher, J., of the same opinion.
I am not satisfied that there ought to be a new trial upon either of the points upon which it is claimed; because substantial justice has been manifestly done by the verdict; and in my opinion, sufficiently within the forms of law to warrant a judgment thereon.
With respect to the objections arising from the supposed want of demand on the maker of the note, when it became due, and notice to the defendant as endorser, I shall say nothing; because we all agree that there shall not be a new trial on those grounds; and the Chief Justice has very clearly given the reasons of this opinion.
With respect to the last objection, viz., that the defendant is sued as endorser of a promissory negotiable note, and that the declaration is not supported by the note exhibited in evidence, because the words “ foreign bills ” are found on the paper on which the note is written, I find myself alone in the opinion that this objection ought not to prevail.
It seems to be admitted, on all hands, that the intention of the parties to the instrument, as originally made, is to be resorted to for an explanation, where its words contain any ambiguity; but that intention must be gathered from the nature and terms of the contract. Indeed, in this case, no evidence has been offered to control or explain the contract; but the legal effect of the instrument itself is what the parties, by their exceptions, aim to ascertain.
*Now, it is evident that Clap, the promisor, and Fales, [* 257 ] the promisee, at the time of making this note, intended that it should be negotiable. This appears from its being made payable to Fales or order, and from the use of those terms which are generally adopted in notes made for the purpose of transfer in the market, or of deposit in the banks for collection. There are words in this sufficient to effectuate this intention, and to satisfy those to whom it might be transferred, that such was the true na turc of the contract.
But the words “ foreign bills ” are written on it, and they must be allowed some signification. I apprehend a due signification may be allowed them, without impairing the validity of the contract, as intended by the parties when it was made. I consider those words as furnishing evidence of the understanding of the promisor and promisee, that if the sum secured by the note should be paid at the time stipulated, it should be received in bills of those banks which have acquired the denomination of foreign; or in money at a dis
Perhaps the endorsee, if he received the note before the day of payment, seeing those words on it, would be held to have taken it subject to the same agreement. But the original parties to the note seem to have been aware that a note payable in any thing but money was not negotiable. They, therefore, lest the intention which they manifest in the body of the instrument should be frustrated by the insertion of the mode of payment agreed on between them, made the memorandum rather for the purpose, it should seem, of giving an honorary claim to the promisor to discharge his note, in a manner different from the express provisions of the contract, than with the intention of defeating the negotiability of a note, which, possibly for the convenience of both, had been made nego liable.
I am satisfied that the memorandum never was intended to check or interrupt the transferable nature of the note; but that the verdict has given that effect to it which its terms import, and which the parties originally designed. I am therefore opposed to granting a new trial.
New trial granted