Cummings & Manning v. Gassett

The opinion of the court was delivered by Redfield, J. 1. Not to spend time upon the other views taken of this case in argument, we think it very obvious, that this writing, defective as it confessedly is, did express, with proper certainty, that the defendant had received money of the plaintiffs to the amount of $30,83, for which he was liable to them; and if so, the proper action was assumpsit for money had and received. 2. But, if it were necessary, it seems to me it would not be very difficult to supply the omission in this note by intendment. There is but one way, in which it can be supplied ; no two persons would think differently in regard to that. In such cases, it seems to me, courts should, if they do not choose to stultify themselves in the estimation of all common sense men, supply the defect; and I have no doubt we should, in this case, if it were necessary. 3. It is very questionable, whether the memoranda upon the note come within any decided case of controlling the other part of the contract. The one at the bottom is in favor of the payee, and might therefore have been placed there for the very purpose of supplying the defect in the note. The one upon the margin is quite too uncertain to be relied upon to determine the consideration of the note. It raises no such suspicion, except from the coincidence of sums; and that might have happened from other reasons. It was merely placed there to aid the memory of some one, in regard to some subject ; and that it was not intended to form part of the note is very obvious. 4. The testimony in regard to the statute of limitations seemed to be all, that has been required in this state for many years. The rule upon that subject has been too often stated to be here repeated. Judgment affirmed.