Hodges v. Shuler.

ultimate fact is deduced. In this case the ultimate fact that had to be ascertained was, whether certain requisite information was given to the defendants—and that fact depended upon, and had to be deduced from, the evidence afforded by the notice of protest and certain extrinsic circumstances. Again; because of that extrinsic evidence, the question involved was one of fact, although, otherwise, it had been one of law. (Smith v. Whiting, 12 Mass. Rep. 5.) Action against the indorser of Jothan Cushman's note. The notice described it as Jothan Cushing's

note.

The question was left to the jury. Parker, Ch. J., held: "It was properly left to the jury to decide," &c.

VIII. The note being payable to the defendants or order, is negotiable, and it having been indorsed in blank, possession is presumptive evidence of ownership. Such is the law in this. state: and such is unquestionably the law in Massachusetts. (See cases in Mass. Rep. above cited.)

By the Court, GOULD, J. In this case there are three principal points to be considered. 1st. What, by the law of this state, is the primary contract (of the rail road company ;) and what the contract made by indorsing it? 2d. What, by the law of Massachusetts, is that primary contract; and what the contract made by indorsing it? 3d. If, by any law binding this court, the primary contract be, or be so like, a negotiable note, as to require it to be, or make it capable of being, properly protested for non-payment, and the contract made by indorsing it, be such that the defendants were entitled to have such protest made, and due notice thereof given to them, was there such protest made, and such due notice thereof given, in this case?

As to the first point: the very strictest rule, as to what constitutes a promissory note, is that it must be a written promise to pay, (to a person named in it,) absolutely and unconditionally, a certain sum of money at a certain specified time. In this case there is no claim that the contract is not a written promise to pay, (to a person named in it,) a certain sum of money at a certain specified time. But, (say the defendants,) there is a subsequent

Hodges v. Shuler.

provision, that "this note," up to a time six months before the money was payable, might (at the election of the holder) be surrendered; and the holder on such surrendry, should be entitled to receive its amount in stock of the company, instead of money. And it is claimed that this provision takes away the essential quality, that the money must be payable absolutely and unconditionally. To this, the answer is, that to the promise to

pay

the money, there is attached no condition and no uncertainty. Unless, (not later than six months before the money was to be paid,) the holder saw fit to surrender and cancel the promise; if it remained in existence to the time when it promised to pay any thing, it remained an absolute and unconditional promise to pay money only. From its inception there was no instant at which it could have been paid by any thing but money. And there never was any promise to pay any thing else than money.

With these views, I, of course, hold the primary contract to be a promissory note, negotiable; and the contract made by indorsing it, to be the usual one of an indorser of negotiable paper.

The materiality of the second point is found in the fact, that every contract, (sealed, unsealed or verbal,) is the agreement of the parties as they understand it; unless such understanding (as claimed or attempted to be proved) be against the plain meaning of the terms used in a written instrument. Contracts resting on this basis, are to be held to mean, what the law of the place where the contract was made held them to mean. For ascertaining the tenor-the interpretation—the nature of the contract, the lex loci contractus governs. For deciding what remedy is applicable to the contract, (so interpreted,) the lex fori governs. In this case, the primary contract was made, and was to be performed, in the state of Massachusetts. The indorsement was also made there. In the Massachusetts decisions I find nothing to change the position taken by the plaintiff, (Jones v. Fales, 4 Mass. Rep. 254,) "that all cash notes are negotiable; and that all notes for merchandise may be sued by the promisee against the promisor; and when indorsed, by the

Hodges v. Shuler.

indorsee against the indorser." By the laws of that state, then, an indorser of any thing purporting to be a note, (whether for the payment of money, or any thing else, and whether or not by our law negotiable,) makes thereby the same contract as does (with us) the indorser of a negotiable promissory note; that is, if the drawer do not pay at maturity, the indorser will, if the usual steps be taken which would legally charge an indorser of a negotiable promissory note.

The defendants claim that this Massachusetts law refers only to the remedy; as the case cited (and others) speaks of the manner of declaring (against such an indorser) as being the same as if the note were negotiable." But were not the law as is above stated, no manner of declaring could supply the legal basis, (the right of action) on which the declaration is founded.

The third question being thus reached, I cannot say that I deem it difficult of solution. The notice of protest, as a notice, has every element of sufficient certainty; date, time, amount, drawer, payees, indorsement, are all so set forth as to leave hardly a possibility of misleading the indorsers. It is true, the defendants say. (and it is admitted,) that there had once been in existence four other notes, answering precisely to all these points of description; and that the whole five were precisely alike, except the numbering. And then it is claimed that this notice is imperfect, because it did not state the number of this note to distinguish it from each of the other four. But the number is no part of the note; nor does the fact that four, (or four hundred,) other notes were just like it, except the number, make the number any part of the note. These defendants were the payees of all the five. And if they wished to make such a distinction between the several notes, that a notice of non-payment would identify each one; it was their business to make such a distinctive and substantive variance between the notes, (making each differ from every other,) that its description would be a legal essential to a good notice, irrespective of the fact of the existence of the other four. Nor do I see any thing in the cases, cited for the defendants, to vary this opinion. They VOL. XXIV.

11

Gleason v. Thayer.

are all, (the case in Selden's Notes, as well as the rest,) speaking only of notices imperfect on their face. Then, and then only, are facts outside of the papers to be looked into, to see if there were really, and fairly, any ground for claiming to be actually misled by the notice given. The notice, in this case, is not imperfect on its face, and is sufficient.

There is a further reason why (if the question of the writing being a promissory note be considered a close and doubtful one) these defendants should be held on it as a promissory note. It describes or recites itself to be one, ("upon the surrender of this note ;") on its face, it purports to be negotiable, (being payable to them "or order ;") and by indorsing it in blank, they have passed it to the holder as a negotiable promissory note. They shall not, now, be permitted to deny that it is such. They must be held estopped from doing so.

The decision of the special term should be affirmed.

[SARATOGA GENERAL TERM, January 6, 1857. James, Rosekrans and Gould, Justices.]

GLEASON and others vs. THAYER, executor, &c. and others.

In an action against an executor, for the recovery of a legacy which the defendant alleges has been paid by him, to a stranger, for the benefit of the legatees, the stranger need not be made a party defendant.

THIS action was brought against the defendant Stephen H.

THIS

Thayer, as executor of Cynthia Havens deceased, to recover a legacy of $1000 given to the plaintiffs by the will of the deceased, which was dated November 17, 1846. The testatrix died June 7, 1851. The residuary legatees were also made defendants. The cause came on to be tried at the Suffolk circuit on the 9th day of October, 1856, before Mr. Justice STRONG. The plaintiffs gave in evidence the will of Cynthia Havens, deceased, which proved the bequest by the testatrix to the plaintiffs, as alleged in the complaint, and thereupon the plain

Gleason v. Thayer.

tiffs rested. The defendants then gave in evidence a receipt in the words and figures following, to wit: "Received, May 3, 1850, from Mrs. Cynthia Havens, one thousand dollars, being in part of a legacy left me by said Mrs. Cynthia Havens in her will, for my three children, Maria W. Gleason, William H. Gleason, Gabriel H. Gleason.

(Signed)

CYNTHIA S. HAVENS."

The defendants then objected that Cynthia S. Havens who signed the said receipt, and who is the mother of the plaintiffs, should have been made a party to this action; and insisted that the trial ought not to proceed until she should be brought in and made a party defendant. The plaintiffs insisted that she was not a necessary party to the action, and offered to prove that Mrs. Havens never in fact received the money mentioned. in the receipt, or any part of it, and that no part of the legacy given to the plaintiffs had been satisfied or advanced.

The judge decided that Mrs. Havens was a necessary party to the action, and ordered the cause to stand over to the next circuit, and that in the mean time Mrs. Havens be made a party defendant in the action. To this ruling of the judge the plaintiffs excepted, and appealed to the general term.

George Miller, for the appellants.

B. D. Silliman, for the respondents.

By the Court, BIRDSEYE, J. For aught that appears any where in this case, either in the answers of the defendants or the proof at the trial, Cynthia S. Havens, if she received the $1000, mentioned in the receipt of May 3, 1850, acted as an entire stranger to the plaintiffs. No authority from them to her to receive this money is pretended to exist. Upon an examination of the will it appears that the legacy was given directly to the plaintiffs, and not to Cynthia S. Havens for the plaintiffs. There is, therefore, no privity between the plaintiffs and Cynthia S. Havens. If she has become the recipient of these moneys for their benefit, they may, perhaps, bring an action