54 Miss. 716 | Miss. | 1877
delivered the opinion of the court.
Suit was brought by A. C. Hooker, the payee, against G. W. Shackelford, acceptor, on the following order or bill of exchange:—
“ Tchula, March 25, 1871.
“ Mr. G. W. Shackelford, — You will please pay to Mr. A. C. Hooker, or order, $320, and charge the same to my account.
his
“ Signed, Sam X Dorset.
mark.
Witness, W. B. JoNES.”
Across the face of the paper is written these words: —
. “ Accepted. Payable after my advances are paid.
“ Signed, G. W. Shackelford.”
The Circuit Court, in its rulings on testimony, construed the acceptance as relating to.advances which Shackelford had made before and at the date of the acceptance, and excluded testimony tending to prove the understanding of the parties to the paper.
For the purpose of applying an instrument to the facts to determine what passes by it, and who takes an interest under it, every fact that will enable the court to identify the person or thing mentioned in the instrument, and to place the court as near as may be in the situation of the parties, is admissible in evidence. Shore v. Wilson, 9 Clark & Fin. 355, 556 ; 2 Parsons on Contracts, 560. It was competent to show the connection of the parties with each other, and the subject-matter, which were, that Dorsey was one of Shackelford’s tenants. Shackel-ford had made arrangements with a merchant at Tchula to supply the tenants, on his credit; so that he became the debtor of the merchant and the creditor of the tenants. He had taken a deed in trust from Dorsey on the crop. Hooker insists that there is no ambiguity in Shackelford’s acceptance. Shackel-ford claims that it is ambiguous, and that, therefore, extraneous testimony should be admitted in explanation. The rule on this subject, as stated in 1 Greenl. Evid. § 275, is to the effect that when parties have deliberately put their engagements in writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is
If the rejected testimony offered by the defendant below had the effect to make a contract different from that expressed in the writing, or to vary it, it was properly excluded. If, however, its effect would be consistent with the writing, removing the uncertainty as to what “ advances” were referred to and contemplated by the parties, it is urged by the plaintiff, in this court, that the testimony should have been received. “ Where the agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms.” 1 Greenl. Evid. § 282. It is not competent to show by parol what the parties secretly and in fact intended ; but when the inquiry is what meaning they meant to convey by the words used in the writing, it is legitimate to consult extraneous facts and circumstances. 1 Greenl. Evid. § 282. For illustration, a party subscribed this instrument: “ I O U the sum of $160, which I shall pay on demand to you.” The paper on its face was inoperative, because not addressed to any person. No one was named as payee. Parol evidence was admitted to show the person to whom the money was to be paid. Kinney v. Flynn, 2 R. I. 319. The objection made was that the ambiguity was patent, and not susceptible of explanation; but to that the answer was, that the promise was to pay “you,” and it was admissible aliunde to point out who “you ” was.
It is the right of the holder of a bill of exchange to insist upon an absolute unconditional acceptance, and he may decline a conditional one, and protest. 1 Daniel on Negotiable Instruments, § 508. If he takes a qualified or conditional acceptance, he does so at his own risk. A conditional acceptance makes a new contract between the payee and acceptor, expressed in the terms employed by the acceptor. He names the condi
Where necessity exists to employ external circumstances to interpret an uncertain written instrument, it is proper, as we have seen, to look at the situation of the parties, and the subject-matter. Parol evidence places the parties in this category: Dorsey was indebted to Hooker, and, as a means of payment, gave the order on Shackelford. Shackelford was willing to pay Hooker whatever excess there might be of Dorsey’s means in his hands after his demands were satisfied; and, not knowing how to shape the acceptance so as to express that limited obligation, a friend was consulted,. and by his advice it was written in the form already quoted. The verbal agreement was that Shackelford should accommodate Hooker by an engagement to turn over to him the excess of Dorsey’s means, after satisfying his own demands upon them. These demands' were for the supplies-furnished during the year. So much of this testimony as would vary or contradict the writing was inadmissible. So., much as would explain the ambiguity was competent.
Shackelford accepted to pay, not presently, but in futuro,— after his advances were paid. The Circuit Court told the jury that the legal import of the words was advances already made. It has not been controverted that the advances contemplated by the parties being, on the face of the writing, uncertain, parol evidence could be received on the point. It was shown that' the reference was to those made by Shackelford to his tenant Dorsey. Does the ordinary and reasonable mean
The foregoing views indicate what part of the excluded testimony should have been admitted.
Judgment reversed and cause remanded.