Chadwick v. Inhabitants of Portland , 46 Me. 44 ( 1858 )

The opinion of the Court was delivered by

May, J.

The whole difficulty, in the construction of the note in suit, arises from its last clause, which is in these words, “ and the said three thousand dollars,” (this being the amount of money loaned,) “to be redeemable at the pleasure of the town, after ten years from the date hereof.” Without these words, the note, in its legal effect, would have been payable on demand. The payee could have enforced its payment when he pleased, or the defendants could have made a legal tender at pleasure which the payee could not rightfully have refused. We are therefore of opinion that the design and object of the clause under consideration, was not to enable the defendants to retain the money borrowed perpetually, ad libitum; but it was inserted in the note for the purpose of restricting the defendants from making payment until after ten years. The language is adapted to show that after ten years the right to pay the principal should exist, and by a strong and binding implication, that it should not exist before. Such being the purpose of the clause, it is found to contain nothing to prevent the plaintiff from instituting this suit when he did. After the restriction upon the defendants had ceased to operate, then the note was in the same condition as if such restriction had never been inserted. It had performed its office, and both parties were then left to enforce their rights in the same manner as if the note were payable on demand. If the restriction had not been inserted such would have been their condition from the date of the note.

This case is wholly unlike the cases cited in defence. In that cited from the American Law Register, vol. 6, p. 151, Nelson, in Error, v. Von Bonhorst & al., the instrument declared on, in the original action, contained no promise, on the part of the defendant, other than to pay whenever, in his opinion, his circumstances should be such as to enable him, so to do; and, in that cited from 4 Met. 230, Barnard & al. v. Cushing & al., the payees of the note at the time it was made, and as a part of the transaction, indorsed a promise thereon not to compel payment thereof, but to receive the amount when convenient for the malcer to pay it. In both these cases it was held that no action could be maintained. Neither contract contained any legal obligation at all, because the debtor in each case, in effect, reserved to himself the entire control of all remedies against him. To be sure there was, in form, an agreement to pay, but the right to enforce payment was, by mutual consent expressly withheld; and thus the obligation was merely a moral one. The language in both cases was too unequivocal to admit of any other construction. In the present case, we find no such difficulty. The note is susceptible of a reasonable construction, and such as will give legal efficacy to the promise contained in it, which is expressly to pay the principal, or money borrowed, as well as the interest at the rate agreed. According to the agreement of the parties, judgment is to be entered for the plaintiff, for the sum of three thousand dollars and the interest due thereon.

Defendants defaulted.

Tenney, C. J., and Rice, Goodenow, and Davis, J. J., concurred.