Nichols v. Frothingham

[225] The opinion of the Court was drawn up by May, J. The right of the plaintiff to recover in this action is resisted upon several grounds. And, first, it is said that the note declared on is void for uncertainty. It is in these words:— “$1500. Boston, May 1, 1854. “Six after date, we promise to pay, to the order of L. Monson, president of the Metropolitan Fire and Marine Insurance Company of Boston, fifteen hundred dollars, at Merchants’ Bank, Boston. Yalue received. (Signed,) “Frothingham & Workman. The only obscurity in the note arises from the want of a definite statement of the time when payable. A blank form was used, and the blank space, left for the insertion of the proper word to designate the time, was not filled. Does this omission render the note void ? Such a consequence is to be avoided if possible, and if .it can be done consistently with the rules of law. Rice v. The Dwight Manufacturing Co., 2 Cush. 80. In the construction of the note, the intention of the parties is to control, if it can be legally ascertained; and the authorities cited in defence clearly show that an ambiguity, such as appears upon the face of the note, is not open to parol explanation. It is a patent ambiguity, which is well defined as one which is “produced by the uncertainty, contradictoriness or deficiency of the language of an instrument, so that no discovery of facts, or proof of declarations, can restore the doubtful or smothered sense, without adding ideas which the actual words will not of themselves sustain.” Roberts on Frauds, p. 15. In such a case, however, it is competent for the Court to determine from the paper itself, in the light of the circumstances in which it was given, what was the actual intention of the parties. Webster v. Atkinson, 4 N. H., 21. Otherwise, the maker might reap an unjust advantage from his own neglect to use clear and appropriate language, which the law [226] does not allow, when it is possible to ascribe to the language, under the circumstances in which it was used, any appropriate legal effect. Where there is nothing in the contract to lead to a different conclusion, and it is clearly apparent that some word indicative of the intention of the parties was intended to be used, but omitted by mistake, the parties may properly be presumed to have intended to use that word which is most commonly used by the same or other parties under the same or similar circumstances. Their probable intention, in the absence of any thing to the contrary, may well be taken as their actual intention. Coolbroth v. Purinton, 29 Maine, 469. In the case of Connor v. Routh, 7 How. Miss., 176, cited by the plaintiff, it was held that a note payable “ twenty-four after date” was not void for uncertainty, but was a note payable at some time after date, and was admissible in evidence, without other testimony, under an averment in the declaration that twenty-four months after date was the time meant by the parties, and it was left to the jury to judge as to the fact of the time intended. In the case before us, the Court are authorized to draw such inferences as a jury might. It does not, therefore, become material for the Court to determine whether the legal interpretation to be put upon the note as to the time of payment, in view of the circumstances attending its creation, appropriately belongs to the jury or the bench. That the time of payment meant by the parties may be determined by the one or the other, we have no doubt. In view of all the facts in this case, we are of opinion that the word omitted in the contract after the word six was intended to be months; that it was left o'ut by mistake, and that both parties understood the term of credit to be six months. Notes payable in six days are seldom seen, while those payable in six years are not very common. The word most frequently in use in the commercial arrangements of men, not only in our cities, but in the country, to designate, the time when notes and bills fall due, is months. Especially •is this so where the numerical adjective used in connection [227] with it is six, as in the present case. There being nothing in the note in suit to indicate that any other term of payment was intended by the parties, the law, under the circumstances, regards it as a note payable in six months from its date. It is further contended that the note was not payable to “ the Metropolitan Eire and Marine Insurance Company,” but that these words in it, as well as the words “President of” immediately preceding them, were only used as descripúo persona. It cannot be denied that, if the note was intended to be payable “to the order of L. Monson” as an individual, and not as president of the company, acting officially, the insertion of such descriptive words was wholly nugatory. Under the circumstances of this case, we cannot doubt that it was the intention of the parties to the note to make it payable to the order of L. Monson, as president of the Insurance Company, and so, by its very terms, the said Monson is distinctly recognized as having official authority to indorse it. Such must have been the mutual understanding of the parties. That the note may properly be regarded as payable to the order of the company, and that they are sufficiently designated as the payees, is well sustained by the authorities. In addition to those cited by the counsel for the plaintiff, upon this point, wo cite the case of the Trustees of the Ministerial and School Fund in Levant v. Parks & al., 1 Fair. 441. It is further objected in defence that if the note is not void for uncertainty, and can properly be regarded as a note payable to the Metropolitan Fire and Marine Insurance Company or their order, in six months from its date, still it has not been legally indorsed, because it does not appear that Monson, the president of said company, had any authority to indorse it. It is, therefore, contended that the indorsement now upon it, through which the plaintiff, as indorsee, claims, is void. But we are of opinion, in the absence of all proof tending to show any want of such authority, that it is well established by the legal evidence in the case. It might, perhaps, be well questioned whether the recognition of such authority in the note itself would not, if uncontrolled by other [228] evidence, be sufficient to - show it. In view'of -all the facts, the' note, having been legally indorsed before it became due, or-was dishonored, is not open to the equities' subsisting between the original parties,-and the- defence which is-set up therefore fails. ' Defendants defaulted. Tenney, C. J., Hathaway, Cutting, Goodenow, and Davis, J. J., concurred.