Matthews v. Crosby

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, 43 N.H. 128; Cota v. Buck, 7 Met. 588; Chitty on the Bills 132. The body of the notes contains the word "profits." But this word does not express any contingency upon which the payment of the notes depends, nor refer to any particular fund out of which they are to be paid. The word does not in any way modify the promise of the defendant. He has, for value received, promised to pay Jacob B. Rand, or bearer, forty dollars profits, with interest, one year from date. The natural and reasonable construction of the language used is, that the profits were not profits to be earned during the year or in the future, for there might be no profits earned, but were profits already accrued or agreed upon. The word refers to the consideration for which the note was given, which the maker distinctly admits in the use of the words "value received." 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,4 N.H. 21; Bartlett v. Nottingham, 8 N.H. 312. Is there a latent ambiguity in these notes? "A latent ambiguity is that which seems certain, and without ambiguity for anything that appears upon the instrument, but there is some collateral matter out of the deed that breeds the ambiguity." Sugden on Vendors 101 (1st Am. ed.); Trustees v. Peaslee, 15 N.H. 327; Miller v. Travers, 8 Bing. 244. No difficulty arises to the person to whom the defendant promised. No question is raised that the promisee, Jacob B. Rand, was described by *Page 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, 109 Mass. 36, is a case very much in point. The note declared upon was as follows: "Twelve months after date I promise to pay to the order of Maurice Curry four hundred and one dollars for value received. On policy No. 33,386. Bg. Stromness, Maurice Curry." It was held that the words in the body of the note, "On policy No. 33,386, Bg. Stromness," did not express any contingency as to the payment of the notes, or refer to any fund out of which they are to be paid, but appear to refer to the consideration for which they were given. 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,38 Ga. 126; Dougherty v. Perry, 38 Ind. 15.