Elmore v. Higgins

Dillon, J. Ltrwtraíieous,0’ me!!.' That the cotemporary indorsement on the back of the note became part of it, binding upon the P^ies and qualifying and restricting their contract (2 Pars, on N. & B., 539, et seq., and cases), and that in construing the contract, the note and indorsement and mortgage are to be taken by the corners, and effect given to every expression, if this can fairly be done (Id., 542; Chitty on Cont., 70), are propositions elementary in their character and not controverted by counsel. 2. — contract construod. Looking at the subject matter of the contract, and keeping in view the principle iust stated, what effect 0 . 4 * 1 # ° ' should be given to the indorsement in question? What idea did the parties intend to express? The plaintiff’s position is thus stated in the written agreement which he has submitted. “The plaintiff claims (and it is fair to infer), that the indorsement was simply intended to show that the note was secured by a mortgage, and must be sold or hypothecated (if at all) with the mortgage, so that on payment to the holder of the note, immediate delivery and satisfaction of the mortgage could be obtained.” The counsel for the defendant, denying the correctness of this construction, contends that the indorsement, properly construed, should be “ held to signify that the note, as an instrument creating a liability, is confined to the mortgage as an instrument of security. In other words, that the plaintiff, in his remedy upon such note, is confined to the mortgage as to the extent of his recovery.” Upon the whole we are of opinion that the defendant’s view is the correct one, and that the demurrer to the answer should have been overruled instead of being sustained. Considering the subject matter, the time when, the place where, and the manner in which the indorsement was made and signed, the almost meaningless effect given to it by the plaintiff’s view, and the more rational, natural and substan [255] tial effect given to it by tbe defendant’s construction, we entertain little doubt that it was tbe intention and understanding of the parties that the maker of the note should stand free from personal liability for any deficit after exhausting the mortgaged estate. We might elaborate the grounds of our decision, but as a case involving precisely the same facts will, in all probability, never again arise, it is scarcely profitable to do so. The decree of the District Court is (agreeably to the stipulation of the parties in case of a reversal of the ruling below) modified so as to relieve the defendant, Amando D. Higgins, from personal liability, but the sale of the land under the special execution remains wholly undisturbed. Decree modified.