Whitwell v. Winslow

| Mass. | Mar 2, 1883

Field, J.

The exception, that it was not open, under the pleadings, to the defendant to contend that the instrument declared on was not negotiable, was waived at the argument.

The rejection of the evidence of what Frederick Winslow said to the plaintiff at the time he gave the note to him, so far as it was offered for the purpose of varying the legal effect of the instrument, was right. Neither could the evidence offered, if true, operate as an estoppel to prevent Frederick from contending that the plaintiff could not maintain in his own name an action on the instrument. If the statement made by Frederick was false, and was made by him with the intention that the plaintiff should act upon it, and the plaintiff was thereby induced to accept the instrument, still it was a statement of an opinion upon a question of law, where the facts were equally well known to both parties.

The instrument declared on is a promise to pay Elijah Peirce, or bearer, five hundred dollars “ with interest the same as savings banks pay.” It is in form a negotiable promissory note, but the defendant contends that it is not such a note, because the words “ with interest the same as savings banks pay ” render the sum to be paid uncertain. The instrument is in effect payable on demand, and is not made payable at any particular place. Either the words “ with interest the same as savings banks pay ” must be considered too uncertain in meaning to constitute a contract, or it must be determined, either by construction or by evidence, or by both, what savings banks were intended by the parties; and it must be shown by evidence what rate of interest was paid by these savings banks during the time interest was payable on the instrument. If it be assumed that the savings banks intended were either the savings banks in Fall River, where the instrument was dated, or the savings banks in Massachusetts generally, it may be found that all the savings banks either in Massachusetts or in Fall River have not during the period mentioned paid the same rate of interest, and that perhaps each bank has not at all times during that period paid uniformly one rate of interest. The ordinary dividends of savings banks in this Commonwealth are paid out of their income, after deducting their reasonable expenses. These dividends are now regulated by the Pub. Sts. c. 116, §§ 24-28 ; and, at the time the instrument in suit was given, were regulated by the Gen. Sts. c. 57, § 147. See St. 1876, o. 203, §§ 14-17. The maximum rate of ordinary dividends is now prescribed by statute, but, within this maximum, the rate actually paid must depend upon the income of each bank. There is therefore no certainty in a promise to pay interest at the rate of the dividends of savings banks in Massachusetts generally; or in a promise to pay interest at the rate of the dividends of the savings banks in Fall River, if there be more than one savings bank there; unless it be shown by evidence that the rates of interest of all the banks which were intended by the parties have been the same during the whole period for which interest is to be computed. If the rates of interest paid by these banks have been different during this period, it becomes impossible to determine what rate of interest was intended by the promise to pay interest the same as savings banks pay. It is therefore uncertain whether this promise can be made certain by any evidence. Such a promise has not on the face of the instrument that degree of certainty in regard to the amount of money to be paid which is requisite to constitute a negotiable promissory note.

The evidence recited in the exceptions was not sufficient to warrant the jury in finding a verdict for the plaintiff upon the second count for money lent. The evidence tends to show that, if the money was lent, it was lent by the authority of Elijah Pierce, and was his money; and that, if any debt is due, it is due to his estate; and the defendant. is executor of his will. The rulings of the presiding justice were correct.

Exceptions overruled.