Toole v. Crafts

Sheldon, J. It is argued by the plaintiff that the oral evidence introduced at the trial was not competent and ought not to have been considered on any other question than the issues as to whether the defendant’s waiver of demand, notice and protest had been procured by fraud or improper inducement, or was made under a mistake or in such ignorance of the material facts as not to be binding; and that the jury ought not to have been allowed to apply it to the question whether the waiver was of a past or of a future demand and notice, or even to consider that question at all. The plaintiff contends that this indorsement with the waiver which it contained constituted a completed agreement in writing, which could not be varied or controlled by oral evidence. It is not disputed on either side, as it could not be (see R. L. c. 73, § 126), that such a waiver may be made as well after as before the failure to make seasonable demand and notice; and the plaintiff contends [401] that the effect of such a waiver, made without limitation, cannot be limited by oral evidence of the actual meaning of the parties either to an antecedent or to a subsequent failure to make proper demand and give proper notice. Leonard v. Smith, 11 Met. 330. King v. Nichols, 138 Mass. 18, 23. This doctrine has been maintained in other actions upon promissory notes in our own decisions. Torpey v. Tebo, 184 Mass. 307. Rowe v. Bowman, 183 Mass. 488. Equitable Ins. Co. v. Adams, 173 Mass. 436, 438. Wright v. Morse, 9 Gray, 337. It has been upheld in other States in actions upon indorsements made with a waiver like that before us. Iowa Valley State Bank v. Sigstad, 96 Iowa, 491. Lockwood v. Bock, 50 Minn. 142. Farmers' Exchange Bank v. Altura Co. 129 Cal. 263. It is one of general application and ought not to be departed from. We agree accordingly with the plaintiff that the jury in the case at bar did not have the right to find that the defendant’s liability was in any respect less than that imported by the words of the indorsement which he signed; nor do we find anything in the decision formerly made in this case and reported in 193 Mass. 110, to lead us to a different conclusion. But it does not follow that the plaintiff’s exceptions can be sustained. The paroi evidence received was competent, not only upon the issues of fraud or mistake, but also for the purpose of applying the language of the written agreement to its subject matter, and for the further purpose of showing the circumstances under which the agreement was made, and thus giving the court the light of those circumstances in ascertaining the true construction of the agreement. Sutton v. Bowker, 5 Gray, 416. Blanchard v. Page, 8 Gray, 281, 287, 288. Alvord v. Cook, 174 Mass. 120. Scaplen v. Blanchard, 187 Mass. 73. Germania Ins. Co. v. Lange, 193 Mass. 67. And without stating this evidence in detail we are of opinion that the jury had a right to find upon it that in the conversation between Allyn and the defendant, which preceded and brought about his new indorsement, two protests of the note in question were in the minds of the parties: one, which, if it had been made within sixty days of the date of the note, would have fixed the liability of the defendant (R. L. c. 73, § 88; Merritt v. Jackson, 181 Mass. 69); and another, which the plaintiff’s [402] agent contemplated making in the immediate future, which of itself would have been wholly inefficacious to affect the rights of the parties. Under these circumstances it was for the jury to say upon the evidence which of these two separate protests (using this word to include demand and notice) was the subject matter of the agreement, or in other words to which one of them the defendant’s waiver related. Toole v. Crafts, 193 Mass. 110. Fisk v. Fisk, 12 Cush. 150. This was the question submitted to them by the judge; and their finding upon it in favor of the defendant cannot now be reviewed. The result is that the plaintiff’s exceptions must be overruled; and it is So ordered.