| N.H. | Aug 13, 1875
Lead Opinion
FROM MERRIMACK CIRCUIT COURT.
The notes offered in evidence were payable at a time fixed, namely, one year after date, on no contingency or condition, but absolutely; for a sum certain, out of no special fund, but by the maker generally; and to the payee or bearer. These qualities answer the test of the negotiability of a promissory note. Harriman v. Sanborn,
The defendant contends that the question is one of latent ambiguity, and could not be determined by the referee as a matter of law. The construction of all written instruments is matter of pure law, in all cases where the meaning and intention are by law to be collected from the instrument itself. No parol evidence is admissible to limit, extend, contradict, or in any way vary the terms used in an instrument, nor to explain any ambiguity in them which is apparent on the face of the instrument. White v. Atkinson,to whom the defendant promised. No question is raised that the promisee, Jacob B. Rand, was described by *24
his proper name, and that from him the note has been transferred to the present plaintiff, who is the bearer and owner of the same. Nor is any question raised that there were two persons of that name; so that here is no controversy as to which one was the true promisee. Nor, again, is there any ambiguity as to the subject-matter of the promise. It is a promise to pay forty dollars — not forty dollars in profits, nor out of profits, nor when the profits shall be earned, nor provided they shall be earned. The language used cannot be said to be strictly ungrammatical, but when interpreted properly will read something as follows: "One year after date, for value received, I promise to pay Jacob B. Rand, or bearer, forty dollars with interest, being for profits received," or, "it being the sum agreed upon as the value of profits received by me."
Taylor v. Curry,
It is further contended by the defendant, that the referee could not find, as matter of law, that the word "profits," as inserted in the note, was not such an apparent defect or infirmity as necessarily to raise a suspicion in the mind of the plaintiff, or to cast such a shade upon the transaction as to put him upon inquiry. It is clearly a question of fact and not of law, and is in accordance with the decisions. The authorities cited by the plaintiff seem to be quite in point. Bank v. Barrett,
Concurrence Opinion
The fair construction of the term "profits," in the notes in question, is, that the sum which the promisor agrees to pay is to be taken as the amount of profits which he has received on some past transaction, and is to pay to the payee of the note or his order. That being so, the admission of parol testimony, to disclose the agreement sought to be proved, could not be allowed without giving by parol testimony a meaning to the writing different from what is apparent on its face, which is inadmissible. There would be, then, nothing for a purchaser of the note to inquire about. By its fair construction, it imports a note absolutely payable, and not payable on a contingency, and was therefore a good negotiable note.
The referee also finds, as matter of fact, that there was nothing in the term "profits" having a suspicious appearance, or calculated to put the purchaser upon inquiry. This is clearly matter of fact and not matter of law; and the fact having been passed upon and found by the referee, there is nothing left for the court to consider.
The note, therefore, being on its face a good negotiable note, and there being in fact nothing about it to put the purchaser on inquiry, *25 and having been purchased in good faith before it became due, the plaintiff is entitled to hold it free from any equities which might exist between the original parties to the note.
Concurrence Opinion
When the defendant signed these papers, he supposed the word "profits" meant profits to be realized from the worthless patent during the year the notes had to run; and such was the contract which he in fact made. But the papers were cunningly drawn, in such way as to carry one idea to the mind of the defendant, who knew the understanding upon which they were given, and another to the mind of one who had no such knowledge, and was also ignorant of the transaction out of which they sprang. It was the device of a rogue to overreach and defraud the unwary. The referee has found that "the word `profits,' as inserted in the note, was not such an apparent defect or infirmity as necessarily to raise a suspicion in the mind of the plaintiff, or to cast such a shade upon the transaction as to put him upon inquiry." He also finds that the plaintiff took the notes in payment for land, and became the innocent bona fide holder of them before their maturity. These findings obviously leave no question but the legal construction of the instruments, which has been considered by my brethren; and I agree with them, that, as the papers stand, they show an unqualified promise to pay, which gives them the legal character of promissory notes, and that the word "profits" imports rather the consideration upon which they were given, than a contingent fund, or any fund, out of which they were to be paid. There must be
Judgment on the report for the plaintiff.