53 Wis. 599 | Wis. | 1881
The only question to be determined on this appeal is, whether the instrument in suit is a promissory note. If a note, it is negotiable, as a matter of course, because by its terms it is payable to the payees named therein or order.
Mr. Byles, in his treatise on Bills and Notes, defines a promissory note as being “ an absolute prornise in writing, signed but not sealed, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named or designated, or to his order, or to the bearer.” Page 11. Judge Story, in his commentaries on the Law of Promissory Notes, says: “A promissory note may be defined to be a written “engagement .by one person to pay another person therein named, absolutely and unconditionally, a certain sum of money at a time specified therein.” Page 2.
It is claimed that the instrument in suit is not a promissory note, because: (1) The stipulation to pay expenses of collection makes the amount uncertain which the defendants promise to pay. (2) The right given the payees to declare the money due
These propositions were very ably argued by the learned connsel for the respective parties, and they referred us to numerous adjudications bearing upon them. The learning and research of counsel have greatly aided us in our deliberations upon the case. On the first two of the above propositions there is much conflict in the cases. Many courts whose decisions command the highest respect, have held that stipulations like those under consideration, in an instrument which would otherwise be a negotiable promissory note, destroy its character as such, while many other courts of equal authority have held the contrary doctrine. The cases on the subject are too numerous to be here cited, but references to many of them will be found in the briefs of the respective counsel. It may be remarked, preliminarily, that the statute (R. S., 495, §1675) is merely a reenactment of the substance of the statute 3 & 4 Anne, c. 9, which was passed for the purpose of establishing the negotiability of promissory notes, that quality having been denied to them by Lord Holt, in Clerke v. Martin, 2 Ld. Raym., 757. See Smith’s Mer. Law, 199. Neither the statute of Anne nor our statute attempts to define a promissory note, or to state its essential qualities. To ascertain these we must refer to the principles of mercantile law as laid down in approved treatises, and in those adjudged cases which are regarded as authoritative.
The first specific ground upon which the negotiability of the instrument in suit is denied, will now be considered. The instrument contains this clause: “We also agree to pay all expenses, including attorney’s fees, incurred in collecting;” meaning, of course, in collecting the money which the defend
A large number of cases have been cited which hold that if the amount payable at the maturity of the paper is fixed and certain — the instrument containing the other essentials of a note,— it is still a note, although it contains a further promise to pay an uncertain sum for expenses or costs of collection if not paid at maturity, or if suit be brought upon it. We have examined many of these cases, and in all thus examined we find express stipulations that such expenses or costs are only payable provided default be made in the payment of the note at maturity, or unless suit be brought upon it, which implies a default. But, as already intimated, there are many adjudications holding that an instrument containing such a stipulation, notwithstanding the amount due at maturity is fixed and certain, is not a promissory note.
The cases in this court which are claimed to have any bearing on the question at issue between the courts, are Leggett v. Jones, 10 Wis., 34; Blake v. Coleman, 22 Wis., 415; and Kirk v. Dodge Co. M. Ins. Co., 39 Wis., 138. If there are any other cases decided by this court, affecting the question, we have failed to recall them.
In Leggett v. Jones the opinion was expressed, confessedly upon a slight examination, that an instrument in the form of
A note is ¡jayable in lawful money of the United States, which is at par in every portion of the country. If a note is made payable in Milwaukee, with exchange on New York, it requires precisely the same sum of money to pay it as would be required had it been made payable in New York. The exchange is the cost of drawing a bill and transmitting the money to New York to meet it. In Leggett v. Jones the note was payable to the Dodge County Bank, with exchange on New York. Had the note been made payable in New York, no one would claim that there was any uncertainty in the amount, although the maker would necessarily have been subjected to the expense, uncertain in amount, of providing funds there to meet it. It is precisely that expense which constitutes and governs the cost of exchange. Hence, the same sum of money which would have been required to .pay the note in New York, would have paid it at the Dodge County Bank, including the exchange, according to its terms. In speaking of the cost of exchange, we refer only to transactions in money. Nominally, the cost of exchange may. include the discount on the ordinary currency of the place where the bill is drawn, at the place of payment; and such discount
Blake v. Coleman merely decides that an unsigned memo-' randum on the back of a note, qualifying the time of payment,- and which wars placed there before the note was signed, became a part of the contract and binding upon the payee.
. In Kirk v. Dodge Co. Mut. Ins. Co. the instrument before the court was in the form of a negotiable promissory note made by the plaintiff to the defendant. It was therein stated that the same was given for premium for an insurance policy of a specified number. The note also contained the conditions that if not paid at maturity the whole premium on the policy should be considered earned, and the policy should be null and void while the note remained unpaid. The controlling question was, whether the instrument was a promissory note, and the court held that it was. Manifestly there was no uncertainty in the sum required to pay the note at maturity, or at any time after maturity. True, it provided that the penalty for default should be that certain other obligations should become due, presumably before the time of payment specified therein; but that provision did not make such obligations a part of the note then under consideration, or increase the amount of money required to pay and discharge such note. The note called for $4-0, with interest, and there was no stipulation under which the maker could be required, under any circumstances, to pay more than $40 and the accrued interest to discharge the note.
Obviously, none of these eases commit this court to either line of conflicting decisions before mentioned. We are thus
As the foregoing views are decisive of the case, necessarily resulting in an affirmance of the judgment, it is thought advisable not to determine the other propositions so ably argued by counsel.
By the Gourt.— Judgment affirmed.