13 N.M. 202 | N.M. | 1905
OPINION OP THE COURT.
— The assignments of error filed by the defendant set forth that the court erred in finding for the plaintiff on the testimony presented, and in sustaining the objection to the testimony presented for the defense, and also in its rulings upon the admissibility of the testimony presented on the hearing.
“Fernando cle Taos, New Mexico, November 22, 1873.
“Upon the confirmation by the Congress of the United States of that certain land grant known as the Canon de Chama, otherwise called San Joaquin del Eio de Chama grant, I promise to pay Mr. Samuel Ellison or order the sum of five hundred dollars in current funds of the United States.
“Antonio Joseph,
“Frederick Muller,"
It is alleged on behalf of the defendant that the time of maturity upon which this contract is based has never arrived for the reason, first, that that grant has never been confirmed by the court of private land claims, but that only certain allottments therein contained have been confirmed, and second, that even if confirmed by the court of private land claims such a confirmation was not a confirmation by the Congress of the United States as provided in the instrument sued on. We are of the opinion that neither of these positions is well taken. As to-the first, while it is true that the confirmation by the court of private land claims restricted the area of the grant to about 1,420 acres composed of agricultural allotments as against almost a half million acres claimed, composed of these allotments and a vast outlying tract suitable only for pasturage and similar purposes, still the action of the court of private land claims, as embodied in its decree, was no less for that reason a confirmation of the grant. The grant as confirmed by the court of private-land claims must be assumed to be the grant as it always existed, and even if confirmed by the court, with an extremely reduced area, was none the less confirmed. We-are of the opinion further that a confirmation by that court was within the terms of this contract as being a-confirmation by Congress. The United States has adopted at various times different methods of dealing with private-land claims; in some instances as in California confiding the determination of such matters to a commission vested with more or less restricted powers; in other cases, as in the grant here under consideration, confiding the matter to a court vested, as was the court of private land claims, with power to hear and determine cases upon the principles of equity; and in still other cases, Congress dealt direct with the matter, confirming a claim by direct Congressional act upon the report of its own committees, instead of by delegating that power to courts specially designated for that purpose. But whether the one method or the other was adopted, the confirmation after all was by Congress, in that the power to deal with the subject matter came directly by act of Congress, and without such act no power would have existed. The adjustment of these claims upon the national conscience was essentially a political act and that Congress in the performance of such act may have enlisted the assistance of a judicial tribunal especially created by it for that purpose cannot be taken as detracting to any extent from the fact that such a confirmation was due to the act of Congress and directly flowed from such Congressional action. The determination of such matters by the court of private land claims was simply a determination of the issues of law and fact which would otherwise have been dealt with and reported upon by proper committees of Congress; and after the determination of the matter by the court of private land claims the patent evidencing the quit claim of the government was issued under the direction of the land department just as in cases of Congressional confirmation. We are of opinion that the fact that Congress mav have been in some instances more liberal in dealing with these private land claims than commissions or courts created by it, cannot be considered as a circumstance affecting the construction of this contract. It cannot be assumed that in making this contract the parties were stipulating to secure from Congress more than the}r were justly entitled to. It must be assumed that the decree of confirmation rendered by the court of private land claims, and affirmed by the supreme court of the United States, gave the owners all they were justly entitled to. As presumably all the claimants sought was what was due them, and as presumably that is all they would obtain whether the matter was dealt with b}r Congress or by one of its courts, the difference in tribunal cannot be assumed to have entered into the making of the contract. We accordingly hold that the purpose of this contract was the payment of the amount named upon the confirmation of the grant, whether by act of Congress specially applicable to this grant, or by act of Congress providing for tbe submission of this and other gTants to a competent tribunal, which after due investigation might grant a confirmation.
The rule is recognized by each of the parties that in order to constitute a negotiable instrument the fact of the maturity of the instrument at some time must be morally assured, it must be certain to accrue. It is contended by the defendant on the one hand, that the wording of the instrument “upon the confirmation by the Congress of the Fnited States” of the grant in question, was plainty a 'condition which might or might not be attained, and that thus the maturity of the instrument in question was based upon a condition which might or might not finally accrue; and that thus whatever maybe the dignity of this instrument as a contract, it lacks an essential element of negotiability, to-wit, certainty of maturity. On the other hand, it is contended by the plaintiff that the confirmation of this grant by Congress was moralty certain,_ in that it depended upon the performance of a governmental duty, and that while the time of such confirmation was indefinite, there was at the time of the making of this contract and at every moment subsequent a moral c'ertainty that Conr gress would at some time perform this duty of confirming to one of its citizens the title to this grant. The cases bearing upon this precise point are not numerous, and those cited by the parties in their briefs are, as a rule, not in point. Thus the line of cases holding that notes payable “at the maker’s death” are negotiable, are not in point for the obvious reason that death is an absolute certainty and a note contingent upon a death is thus contingent upon something -which is bound to occur. Equally as apart from this proposition are the cases relied upon by plaintiff known as the “Southern War cases,” involving questions as to the negotiability of notes payable within a certain time after the cessation of war between the Confederate States and the United States of America, or the establishment of peace between those then contending portions of our re-united nation. Such obligations were likewise contingent upon an event which was morally certain to happen. In human experience no war has ever existed which has not come to an end, and none can be conceived of that will not have at some time a termination. The limitations of human endurance, physical and financial, absolutely negative the idea that there can be any war which shall not cease. In each of these two classes of cases cited by counsel, there existed, therefore, a moral certainty of the maturity of notes. But does the confirmation of a land grant by Congress stand upon the same basis? It is urged bj the plaintiff that it does for the reason pointed out in one or two English eases of great antiquity. The first of these is the case of Andrews v. Franklin, 1 Strange, 22, wherein the condition of the note was “payable two months after a certain ship of His Majesty’s service should be paid off.” This note was objected to as depending upon a contingency which might never 'happen, but the court held otherwise upon the ground that the “paying off of a ship” is a thing of public nature. Also there is cited the case of Evans v. Underwood, 1 Wils. 262, wherein a note was held negotiable, the terms of which were “I promise to pay to George Pratt or order, eight pounds, upon the receipt of his, the said George Pratt’s wages due from his Majesty’s ship, the Suffolk.” In that case the court contented itself with citing and following the case of Andrews v. Franklin. We have been referred to no American cases in which the doctrine of Andrews v. Franklin has been followed or indeed countenanced. The case of Chicago, etc., Co. v. Merchants National Bank, 136 U. S. 268, it is true, cites this case hut the question there involved was a very different one-from that ruled in Andrews v. Franklin. On the other hand, wherever these two cases have been cited by the text writers or the reports, it has been to question their soundness. Indeed, doubts have even been expressed as to whether Andrews v. Franklin was ever actually decided, and Evans v. Underwood has been particularly criticized upon the ground that while the paying off of a public ship may be a moral certainty it is by no means to be considered equally certain that a particular person will receive wages thereupon. For reference to these cases see 1 Dan. Neg. Inst. Sec. 46; Story on Prom. Notes, See. 27; Chitty on Bills, p. 137; Bayley on Bills, p. 26; Weidler v. Kauffman 14 O. S. 456.
For the reasons stated we are of opinion that the instrument sued on was not a negotiable instrument but was simply a contract to pay upon a contingency which might or might not happen.
Holding as we do, that the plaintiff is not entitled to a recovery upon his testimony, and reversing the case upon that ground, we do not find it necessary to determine to what extent the testimony presented on behalf of the defendant was admissible. The case having been tried by the court below, upon the theory that the instrument' sued on was a negotiable instrument, it naturally resulted that the same weight was not given to the testimony for the defense that would have been given otherwise. Holding as we do, that the instrument sued on was not negotiable, the ease is open for all defenses that would have been available between the original parties, and we deem it fairer to remand the case for the purpose of admitting such proof as may be offered by either side. Of' course, no testimony can be received upon the new trial as to oral agreements contemporaneous with or prior to the instrument here sued on, contradictory of the terms thereof ; and, of course, in the further trial of this case, no testimony of the defendant “in respect of any matter occurring before the death of the deceased person” can justify a decision in his favor “unless such evidence is corroborated by some other material evidence.” (C. L. Section 3021), and, of course, further, such corroboration must be upon the point or points in issue in the case necessary to a recovery. Gillett v. Chaves, (N. M.) 78 Pac. 68 and cases cited.
The case will be reversed and remanded for further proceedings in accordance with this opinion.