Ewer v. Myrick

Forbes, J. It was objected, on behalf of the defendant, that no part of the principal of this note would become due until the expiration of ten years from its date. This objection is answered by the terms of the contract, which leave nothing open to construction; the promise is express that fifty dollars of the principal shall be paid annually. It was then contended that, if the note is payable b) instalments of fifty dollars a year, the whole amount of sevv hundred and fifty dollars would not become due until the expiration of fifteen year’s from the date. By suppressing a part of the agreement, this consequence might follow. The language of the contract may not be critically exact, but the meaning of the parties is plain enough. They agreed that the interest should be paid semiannually, that fifty dollars of the principal should be paid annually, and that the whole amount of the note, principal and interest, should be paid in ten years after date. All this appears upon the face of the note, and however inartificial its language may be, we are to look to the meaning of the parties only, which in the present case is free from doubt. The real defence is to be found in the bond or sealed agreement, and the memorandum appended to it. This evi [22] dence was introduced by the defendant, and his counsel contends that the note and bond were made at the same time, that they relate to the same transaction, and are to be read together as evidence of one entire contract. If the recital in the bond refers to the note in suit, the plaintiff would seem to be precluded from denying that the note and bond were made at the same time, and related to the same transaction; but whether they are evidence of an entire contract, or of mutual and independent contracts, we do not think necessary to determine; for, assuming that the contract was entire, it does not disclose an agreement not to enforce payment of the interest, and such instalments as should become due, before the expiration of the ten years. The agreement of the plaintiff was, that if the note should not be paid at the expiration of ten years, it should be given up to the defendant, upon his executing a quitclaim deed of the land described in the bond. There was, certainly, no express agreement not to collect the instalments as they should fall due, nor is such an intention to be fairly inferred. The defendant was surety for Bunker, and had received a conveyance of the land as an indemnity. But the plaintiff evidently relied, not upon the land, but upon the name of the defendant, as security for his claim. If it was optional with the defendant to omit paying the interest and instalments until the maturity of the note, and then to discharge himself, by a conveyance of the land, his name to the note gave no additional security to the plaintiff; and no good reason is perceived why the plaintiff did not, originally, taire the land as security without the intervention of the defendant; especially as in that manner he might have availed himself of the intervening rents and profits, which, for aught that appears, are now in the hands of the defendant. We think the true construction of the agreement to be this: the defendant promised that the interest and instalments should be paid, at the several periods mentioned in the note, until the expiration of ten years ; the plaintiff entered into the contract with reference to that promise, and upon the supposition that it would be punctually performed. At the expiration of ten years there would [23] remain due upon the note the sum of three hundred dollars and interest thereon for six months ; and in payment of this sum the plaintiff stipulated that he would receive a deed of the land, at the option of the defendant. It may be further observed, that the bond does not describe the note correctly in this respect: it omits the instalments of fifty dollars a year, but the memorandum supplies this omission, and not only states that the fifty dollars is added in the note to be paid annually, but contains a conditional agreement, by which the annual payment is postponed until the termination of the voyage of the ship Phoenix, (an event which probably happened in due time, as no notice is taken of that agreement in the defence ;) but this agreement discloses an understanding between the parties that the instalments might be demanded before the note became due. It is the opinion of the court that the plaintiff is entitled to judgment, and that the motion of the defendant for a stay of execution ought not to be granted.