185 Wis. 58 | Wis. | 1924
We are to consider the effect of the words, “It is understood that a payment of at least $50 a month will be made on the within note,” which appeared on the left-hand margin thereof. It is the contention of the appel
We think it equally plain, however, that it does constitute a material alteration of' the note. It is the contention of the appellants that the words'constitute a mere memorandum placed thereon for convenience and to indicate that, while the note is not due until one year from the date thereof, the payee will accept payments of at least $50 per month as they may be made during the year. It is not always easy» to determine whether words thus written upon the face of a note constitute a mere memorandum or a change in the terms of the note. In-2 Corp. Jur. 1211, it is said that “If what is written upon or attached to an instrument is altogether collateral to the body thereof, and does not restrict or alter its operation, it will be considered as a mere memorandum and without effect.” This principle is recognized by the provisions of sec. 1675 — 10, Stats. 1921, which provides that memoranda material to the contract, if made at the time of delivery, are part of the instrument, the implication being that in order to make the memoranda a part of the instrument the memoranda must be material to the contract. Indorsements having no relevancy or bearing
Appellants contend that the word “understood” should not be construed as indicating an agreement on the part of the makers of the note to make monthly payments of at least $50, but that it should be construed as nothing more than an anticipation that such payments may be made, and, if made, will be received. To this proposition they cite Camp v. Waring, 25 Conn. 520; Black v. Columbia, 19 S. C. 412, in which the meaning of the word “understanding” is considered and held to be too uncertain and ambiguous to indicate a meeting of the minds and a distinct and express contract between the parties. This conclusion, however, is not in harmony with the view which this court has taken of the meaning of the word “understood.”
In Barkow v. Sanger, 47 Wis. 500, 3 N. W. 16, the special verdict of the jury contained this question:
“Was it understood by and between the plaintiff and Stolper, at the time when Stolper gave him the chattel mortgage, that Stolper should continue to carry on his business of selling wood, at his woodyard, and would sell and dispose of the said mortgaged wood and its proceeds, as part of his stock in trade, in the usual course of his business and trade as a wood-dealer?” The jury answered “There was no agreement made.”
It was insisted that this answer was not responsive to the question. The court considered the meaning of the word “understanding,” and held that it was synonymous with
In Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 124 N. W. 649, 125 N. W. 680, the court had under consideration the following clause appearing in a deed:
“It is also understood that the Chicago, Milwaukee & St. Paul and the Chicago & Northwestern Railroad Companies have and shall have a joint right of way twenty feet wide across the whole of lot one (1) at a place where the track is now located, extended in a straight line across said lot.”
It was held that the word “understood” as used in the sentence in question is synonymous with the word “agreed.” See, also, Mount v. Board of Comm’rs, 168 Ind. 661, 80 N. E. 629. In legal tautology the word “understood” is quite universally used as synonymous with “agreed,” and we perceive no reason why its meaning should be considered doubtful or equivocal when used in isolation. We therefore hold the language under consideration should be construed as though it read it is agreed that a payment of at least $50 a month will be made on the within note.
Sec. 117.43, Stats. 1923, provides that any alteration which changes the time or, place of payment or any other change or addition which alters the effect of the instrument in any respect is a material alteration. As originally executed, the payment of no- part of the note could be enforced until one year after date. As changed, monthly payments of $50 during the year could be enforced. This constituted a material alteration. Sec. 117.42 provides that a material alteration of a note without the assent of all parties liable thereon is void except as against a party who has himself made, authorized, or assented, orally "or in writing,
The answer stated a defense, and the demurrer thereto should have been overruled.
By the Court. — Order reversed, and cause remanded with instructions to overrule the demurrer to the answer.
