Cherry v. Sprague

Barker, J. The instrument declared on as a promissory-note is of the following tenor : “ $218.00. Sioux Falls S. D. April 15, 1895. “ Four months after date for value received I promise to pay to the order of U. S. G. Cherry, Two Hundred and Eighteen Dollars, with interest at six per cent per annum, at the Union National Bank, Sioux Falls, South Dakota. “ Unpaid interest shall bear interest at twelve per cent, and if suit is commenced the customary attorney’s fees shall be added to the amount of the judgment and taxed up as part of the costs in the cause. “ Due Aug. 15, ’95. No. 3682 Odin Fritz.” Indorsements: “ Charles H. Sprague. C. Everett Washburn. U. S. G. Cherry.” The instrument contains an unconditional promise to pay at a day certain the definite sum of $218 with interest at six per cent per annum from August 15, 1895, to the order of the plaintiff. If this .were all it would of course be a promissory note. But the additional stipulations do not change the promise into a conditional one in any respect, and they relate solely to the manner in which the unconditional promise to pay the definite sum may be enforced, if broken. This distinguishes the case from Haskell v. Lambert, 16 Gray, 592, Costelo v. Crowell, 127 Mass. 293, Sloan v. McCarty, 134 Mass. 245, and Moore v. Edwards, 167 Mass. 74. In each of those cases the added stipulations made the contract conditional, or the promise one to pay an indefinite amount, or not to pay the sum named absolutely and at all events. It is settled that the incorporation into an instrument which contains an unconditional promise to pay a definite sum of money of additional stipulations does not of itself necessarily deprive the instrument of the character of a promissory note. A recital that an additional rate of interest will be paid after maturity and that the maker has deposited certain collateral, and a statement of the terms upon which the collateral has been deposited, and on which it may be sold upon non-payment of the note does not have that effect. Towne v. Rice, 122 Mass. 67, 73, 75, and cases cited. The test is that in [117] timated by Mr. Justice Field in Sloan v. McCarty, ubi supra. If the additional stipulation relates to the manner in which the unconditional promise to pay a definite sum may be enforced, and does not change the promise from one to pay that sum absolutely and at all events, or change the general nature of the whole contract, the instrument is a promissory note notwithstanding the additional stipulations, relating to the manner of enforcement of the promise, if it shall be broken. In the present instance, as the action is brought by the original promisee it is of no importance whether the instrument is negotiable or non-negotiable, and we do not consider or decide that question. As the instrument was a promissory note and as it was payable in South Dakota and was sent to the payee by mail and received by him in that State it was a South Dakota and not a Massachusetts contract. Nashua Savings Bank v. Sayles, 184 Mass. 520, 522, and cases cited. Callender, McAuslan & Troup Co. v. Flint, ante, 104. It is contended upon the plaintiff’s brief that by the law of South Dakota the stipulation as to an attorney’s fee was void, and the instrument a negotiable promissory note; and further that under the statute of that State,the eighteenth day of August, 1895, being a Sunday, the note matured on August 19,1895, the day on which it was protested for non-payment. The brief cites in support of these contentions the cases of Chandler v. Kennedy, 8 So. Dak. 56, and National Bank of Commerce v. Feeney, 9 So. Dak. 550, and the Revised Civil Code of South Dakota, 1903, § 2236. But the bill of exceptions upon which the case is here contains no statement of these citations nor of any evidence of the law of South Dakota, and it is apparent that the decision of the judge was made without taking into consideration the cases and the statute mentioned, and that we cannot consider them. No proof as to the law of South Dakota having been offered the judge was right in ruling that the common law of that State is to be presumed to be the same as that of this Commonwealth and that there is no presumption that the statutory law of the two States is the same. Kelley v. Kelley, 161 Mass. 111. Olds v. City Trust, Safe Deposit & Surety Co. 185 Mass. 500. Therefore we are to determine whether the rulings of the court [118] below should be set aside as contrary to the common law of this State. Examining them with this view we are of opinion that the defendant has no just ground of exception. His requests that there was no evidence of due presentment, or of due notice to the defendant of non-payment, and that the instrument became due on August 16, 1895, were given, and he has no exception on those points. His contentions that the validity of the instrument and the question whether he is liable thereon are to be determined by Massachusetts statutes are disposed of by the doctrine of Nashua Savings Bank v. Sayles, ubi supra. His other requests and his exception to their refusal and to the ruling that under the common law of this State the defendant was a joint maker of the note and not entitled to demand and notice of non-payment are disposed of by our decisions which show that by the law of this State aside from statutory enactments a third person placing his name on the back of a promissory note before delivery to the payee is an original promisor or maker, not entitled to have demand or notice of non-payment and that as to him no consideration need be proved. Sumner v. Gray, 4 Pick. 311. Woods v. Woods, 127 Mass. 141. Spaulding v. Putnam, 128 Mass. 368. The same considerations which require the overruling of the exceptions dispose of the questions raised by the demurrer. Exceptions overruled; order overruling demurrer affirmed.