Clarke v. Marlow

Hunt, J. The appellant asks us to regard the indorsement made by Broadwater as a mere admission that a debt was due, and that it was intended as, and was only, evidence of a preexisting contract between the parties, and not a new contract. It must be conceded that, if it was such an admission, and can be regarded only as evidence tending to establish a debt, it was not a promise such as is required for a negotiable promissory note. ‘ ‘A promissory note is a new obligation, and not simply evidence of an old obligation. An acknowedgment of indebtedness is evidence of an old obligation, but creates no new obligation.” (Norton, Bills & N. p. 27, where Norton’s text is exactly the language of Prof. Ames in his index and summary of his Selected Cases on Bills and Notes, vol. 2, p. 827.) The foregoing rules will not be controverted, but, in our judgment, they cannot control in this case, because here it was intended by the testator to assume and pay the note to respondent as a distinctly new obligation, and we gather that intent from the form of words used in the instrument itself. No particular form of words is necessary to constitute a promissory note. (Chadwick v. Allen, 1 Ames’ Cases on Bills & N. p. 112.) The words “value received” express only what the law must imply from the nature of the instrument, and the relation of the parties apparent upon it. However essential they may have once been thought to be, at common law they were not necessary. All commercial paper at common law implies a consideration, though none be expressed by the words ‘ ‘value received’ ’ or other words. (Hatch v. Trayes, 11 Adol. & E. 702; Edw. Bills &. N. § 202; Rand. Com. Paper, § 178.) Having no statute in Montana requiring the use of the expression “value received,” it is not essential. (Story. Prom. Notes. § 51.) Nor do we doubt appellant’s contention that it is indis — 256 — pensable to a promissory note that a payee be named therein, or that a payee be ascertainable therefrom. The rule' is thus laid down in Randolph Com. Paper, § 151 : ‘ ‘Although the payee should properly be named in all commercial paper in the instrument itself, this is not absolutely necessary * * * So a new promise written under a note, but naming no payee, is a promissory note to the payee named in the note above. ’ ’ But let us apply that rule. The North Montana Cattle Company, on September 15, 1885, executed and delivered its promissory note for $21,000, due one year after date, to respondent, Clarke. On January 8, 1889, respondent, Clarke, sold and delivered said note to Broadwater. According to commercial usages, at the time of such sale and delivery respondent, Clarke, indorsed on the note, “Pay to the order of C. A. Broadwater.” Thereafter, on January 22, Broadwater delivered the original note to respondent, Clarke, indorsed as follows : ‘ ‘I hereby assume and agree to pay the principal of the within note. [Signed] C. A. Broadwater.” By assuming and agreeing to pay the principal of “the within note, ’ ’ he obligated himself to pay the sum specified as principal in the “within note;” that is, he made an open promise in writing to pay the sum of $21,000 and interest absolutely, and at all events. The indorsement must be considered with the face of the note. This is perfectly clear to us; and it would seem to be equally clear that under such rule of construction the payee, although not expressly named in words by Broadwater, was designated and named with equal certainty and exactness by the terms of the ‘ ‘within note, ’ ’ to which he referred, and which was payable to this respondent, Clarke. In Commonwealth Insurance Co. v. Whitney, 1 Metc. (Mass.) 21, plaintiff gave in evidence defendant’s promissory note, dated September 24, 1824, on the margin of which defendants wrote these words: “Nov. 4th, 1881. For value received, I hereby acknowledge this note to be due, and promise to pay the same on demand. ’ ’ — 257 — Chief Justice Shaw, for the Supreme Court, said he regarded the memorandum made by defendant as a promissory note within the statute of Massachusetts. He continued as follows : ‘ ‘It is made on good consideration, viz : the payment of an existing note, then near being barred; and purports to be for value received. It is a promise to pay a sum of money on demand. The sum and the name of the payee are not expressed in words, but they are expressed with equal exactness and certainty by reference to the note on the same paper. Grinnell v. Baxter, 17 Pick. 386. It is a new promise, in writing, on a good consideration, to pay a certain sum of money to a certain company on demand, and signed in presence of an attesting witness. It is a note, on which, if properly set out in a declaration, an action would lie.” It would be difficult to find a case more clearly resembling tbe one before us. In the Massachusetts case the sum and name of the payee were not expressed in words; and while, in ours, the sum, the name of the payee, and the words “value received” are not written, yet all are expressed “with equal exactness and certainty’ ’ by reference to the note on the same paper, and by the implications of commercial law. Another case entitled to especial reference because of its similtude to the one before us is that of Bullen v. McGillicuddy, decided in 1834 by the Court of Appeals of Kentucky, reported in 2 Dana 90. Bullen and others, on May 22, 1830, executed a note to McGrillicuddy, promising to pay him, four months after date, $1,700, for value received, etc. A credit was indorsed on the back of the note, and there was also on the back of the note an instrument in these words : “Louisville, Oct. 3d, 1830. On demand we promise to pay the amount of the within note, in goods, deducting the above sum of two hundred and sixteen dollars five cents. [Signed] Tillay, Scott & Co.” The plea was set up that the note alleged to have been executed to the plaintiff, McGrillicuddy, by the defendants was void, because there was no obligee in the obligation at all. The court used the following language, which we quote as peculiarly pertinent to the present controversy : — 258 — ‘ ‘It is true that there is not inserted the name of an obligee or payee in the body of the instrument; but we think that it is as clearly ascertainable from the indorsement, signed by Tillay, Scott & Co., connected with the note to which it refers, who the payee is, as if the name had been inserted. In construing the indorsement, it must be connected with the note, because it expressly refers to the ‘within note. ’ The amount which Tillay, Scott & Co. promised to pay must be ascertained by looking into the note. If obligors may fix the amount of their liability by reference to other papers, as most indubitably they may, why may they not designate the payee in the same manner ? If the promise had been to pay the amount of the within note to the within-mentioned payee, although the name was not mentioned, the reference would have made the undertaking as certain in respect to parties and amount, as if the sum had been expressed in dollars and cents, and the names all given. It is equally certain as it now stands. On demand Tillay, Scott & Co. promise to pay the within note. Who has the right to demand the payment of the note ? No one but McGillicuddy. Who has a right to receive payment ? He alone has it, and if Tillay, Scott & Co. should pay to any one but him it would be no discharge of the note. Who permitted them to sign the indorsement, dated the 3rd of October, upon the back of the note, dated the 22nd of May ? Nobody but McGillicuddy, for the note must be ■considered as in his possession, and subject to his control. The indorsement is utterly void, or it is a contract with him to pay the amount of the note. All the foregoing considerations show that McGillicuddy is designated with sufficient certainty as the payee, and it would be very hard to deprive him of the right to enforce the payment by Tillay, Scott & Co., were he to desire it. ’ ’ So with relation to the words ‘ ‘on demand. ’ ’, The law implies a promise to pay on demand where a. good promissory note specifies no time of payment (Leonard v. Mason, 1 Wend. 522; Sackett v. Spencer, 29 Barb. 180; Cornell v. Moulton, 3 Denio 12; Randolph on Commercial Paper; page — 259 — 14, § 16.) Nor was a date essential to the note. (Tied, on Commercial Paper, § 10.) That it was we do not think is contended. We therefore find that the instrument in suit is directly within the broad principle laid down by Judge Cowen in Luqueer v. Prosser, 1 Hill 256, that, if the paper imports an engagement to pay money absolutely, it is a good note, without reference to any particular form of words used by the maker. (Green v. Davies, & Barn. & C. page 235.) There is no force in the argument of the appellant that the note had been negotiated and sold, and was payable to Broad-water, or order, at the time of Broadwater’s indorsement thereon, because plainly Broadwater delivered the note, with his own promise in writing thereon, to Clarke, and thus parted with any apparent ownership he may have had in the same. Appellant makes the point that the averments of the complaint in relation to the indorsement of Broadwater (see statement of facts preceding this opinion) and those pertaining to Broadwater’s indebtedness to respondent were necessary to be made, in order to show that the agreement in writing was for the benefit of respondent; hence the instrument cannot be treated as a promissory note. These averments are really surplus matter in the complaint, but, being there, we do not construe the complaint as pleading mere admissions of debt by Broadwater, or as stating a cause of action as upon a mere evidence of pre-existing debt. The causes that led up to the execution of the independent promise of Broadwater are recited to show consideration for the new promise; and although, for ambiguity, demurrer might perhaps have been well interposed, as said before, there is nothing in the recitals which destroy the sufficiency of the complaint as stating a cause of action upon a new and independent promise of the testator to pay to respondent <¡¡>21,000. The District Court regarded the paper as a promissory note, and allowed respondent interest on a judgment for $21,000, principal of the note, from the date of the delivery, of the — 260 — same by Broadwater to Clarke, to wit, January 22, 1889, at the rate of 12 per cent, per annum. We affirm the date from which interest should properly be computed as correct, but the rate should be 10 instead of 12 per cent, per annum, as prayed for by the complaint. Inasmuch as our judgment is that the writing was a promissory note, discussion of the statute of limitations and of other questions raised becomes unnecessary. The order will be made remanding the cause to the District Court in order that the judgment may be modified as to the rate of interest to be allowed as herein indicated, and, when so modified, the judgment and order appealed from will be affirmed. Modified and Affirmed. Pemberton, C, J., concurs. Buck, J., disqualified.