Hobart v. Dodge , 10 Me. 156 ( 1833 )

Mellen, C. J.

delivered the opinion of the Court at the ensuing May term, in Oxford.

• From an inspection of the original note at the argument of this cause, it appears to be a printed one, with proper' blanks left for the insertion of the names of the promissor and promissee, places of abode, &c. The printed words “ on demand” were erased, by three parallel lines drawn across them, leaving the words, however, as legible as they were before the lines were drawn. The only question in the cause is, whether the note became due before the expiration of four months from its date. The counsel for the plaintiff contends that the limitation as to time, applies only to the payment of interest; and that the principal was due presently or on demand. This construction is denied by the counsel for- the defendant. The case presents two questions. 1. Whether the Court are at liberty to draw any conclusions, as to the intention -of the parties, from the obliteration of the words “ on demand” in the manner above described. 2. If not, what is the true construction of the note, totally disregarding those words.

1. As to this point, the plaintiff’s argument is, that as those words are now no part of the contract, the Court cannot receive any explanations from them, any more than from any other parol evidence ; and that no parol evidence is admissible in the explanation of a plain, intelligible contract. This argument deserves careful consideration. The principle of law is clear that, where a promise is unambiguous, the promissor cannot, by parol proof, relieve himself from the obligation of it, by contradicting or explaining it. Nor can the promissee, in such a case, by the introduction of parol proof, subject the promissor to greater liabilities, than the written promise has created. These principles appear to be settled. The erasure of the above-mentioned words was made for some purpose; and it is presented to the view of the Court by the consent of both parties. The defendant signed the note, as must be presumed, after the obliteration was made : because, immediately following, is the limitation of four months, and gave it to the plaintiff in the same situation in which it now appears ; and the plaintiff, having so received it, has produced it in Court as the basis of his claim, and we cannot shut our eyes against it, even if we have no right to take judicial notice of it. We cannot but see that the words “ on demand” were obliterated by the consent of the parties. We admit that they are now no part of the contract declared on ; but as both parties have placed the fact of erasure before us, have they not both consented that they might aid the Court in the true construction of the words which constitute the contract ? Do they not necessarily present a visible negative upon the idea that the defendant or plaintiff contemplated a liability to payment under four months ? Suppose the words “ on demand” had not been erased, but, instead of that, the word “ not” had been interlined, so as to be read, “ not on demand,” the meaning would seem plain. Does not the erasure imply the same thing? But we are not left without all light upon the subject. In the case of Jones v. Fales, 4 Mass. 245, we may find some aid upon the point before us. It was an action on four promissory notes — all negotiable. On one of the notes, made payable to Fales or order; near the corner, the words “ Foreign Bills” were written, within brackets. Several points were made in the defence. In delivering his opinion, Parsons C. J. says, “ The next ques- “ tion is, whether these words, thus written and placed, are “ a part of the promissor’s contract. I do not think it ma- “ terial, whether they were a part oj’ the original contract or added “ in explanation of it. For when the promissee took the note “ with these words on it, he was subject to the explanation in “ the memorandum, if it was one, as much as he would have been “ bound by these words, if they were a part of the promise.” Sedgwick J. declared his concurrence in the opinion of the Chief Justice. Parker J. says, “ I consider those words as furnish- “ ing evidence of the understanding of the promissor and prom- “ issee” as to the mode of payment; but he said he was satisfied that the memorandum never was intended to check the transferable nature of the note. The spirit of the decision on the point above stated seems to be applicable to the case before us. The principal difference is, that in one case, the meaning and intended effect of a memorandum, and in the other the meaning and intended effect of an erasure, was the subject of inquiry ; neither being considered as a part of the note, on the face of which, by the consent of promissor and promissee, it appeared.

2. As to this point, we do not consider the case of Loring v. Gurney as applicable. In the case before us we have no evidence of usage, either of a general character, or as existing in the plaintiff’s store and mode of dealing in his business. In the whole sentence containing the defendant’s promise there is no comma, which might lead to the conclusion whether the limitation of four months was intended to apply to the interest exclusively or to both ; but the promise is to pay the specified sum with interest after four months. It is true that notes are often made payable on demand with interest after a future day. In such cases it may be fairly presumed that no immediate payment is contemplated, and therefore the promise of interest after a future day is perfectly consistent. As the limitation, as to time of payment, by the terms of the note, appears applicable to the whole promise —• as well principal as interest, we do not feel at liberty to appropriate the limitation to the payment of the interest only.

We are of opinion that, in either view of the subject, a good defence to the action is established.

Judgment on the verdict.