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NEGOTIABLE INSTRUMENTS PROMISSORY NOTE - PAROL EVIDENCE TO
Explain. - Where a note reads, “We promise to pay to the order of myself," and is signed by two obligors, parol evidence is admissible to show which of the two obligors was intended as the payee. Dulaney and Mitchell, for the appellant. Wright and McElroy, for the appellee. BENNETT, J. The appellant, James L. Jenkins, declared on writing that reads as follows:
"BOWLING GREEN, Ky., July 8, 1886. "Sixty days after date, we promise to pay to the order of myself three hundred and sixty dollars, value received, negotiable and payable at Warren Deposit Bank without defalcation,
“ E. R. MURRELL.
“J. N. BAgg.” Indorsed on the back of this writing is the following: “Pay to James L. Jenkins or order. E. R. MURRELL."
The appellant, as the above-named assignee, declared on this writing as a promissory note, and sought to recover judgment on it against E. R. Murrell and the appellee, J. N. Bass, as the makers. E. R. Murrell made no defense. But the appellee, Bass, filed a general demurrer to the petition, which the lower court sustained. The appellant then filed an amended petition, in which he alleged that the note was executed by E. R. Murrell and the appellee, Bass, for the purpose of enabling the former to borrow money upon it, but it was not known at the time the note was signed from whom he could or would obtain the money, so Murrell and the appellee, Bass, agreed that a space should be left in the note for the purpose of inserting the name of the lender as the payee, or that Murrell might insert the name of himself as payee, and by an indorsement on the back of the note order the same payable to whomsoever he chose; that pursuant to the authority of the appellee, Bass, Murrell wrote the word “myself” in said space, which word he intended to represent his own proper name; and thereafter, Murrell having sold said note to the appellant for value, he indorsed the same to appellant by writing his name across the back of it, which was pursuant to the authority of the appellee.
The lower court sustained a demurrer to this amended peti. tion, and the appellant declining to further amend, his action was dismissed, and the case is here by appeal.
Section 13 of chapter 22 of the General Statutes reads: “Whenever a promissory note is made by the obligor payable to himself or to his order, and is signed on the back thereof by the said obligor, and then delivered, such signature and delivery shall operate as a promise to pay the face of the note at maturity to the party to whom the same shall have been deliv. ered, and such party may fill up the blank with words of promise, and recover thereon in the same manner as if such party had been named as payee in the note, and such note shall be assignable as are other promissory notes."
According to common-law principles, & promissory note made payable by a person to himself creates, of itself, no liability upon him to pay it. This is so, not for the reason that it is contrary to public policy, immoral, or illegal, but for the reason that a person cannot contract with himself. So the statute supra provides that a person who makes a promissory note payable to himself may become bound thereon to another person by writing his name on the back of the note and delivering it to such person. In such case, he becomes bound upon the writing as his promissory note to such person. In the case at bar, if the name of E. R. Murrell, instead of the word “myself,” had appeared in the face of the note as payee, it will not be denied that he, by writing his name on the back of the note and delivering it to the appellant, would have become bound thereon to the appellant.
In the case just supposed, is there any reason why the appel. lee would not have been bound to E. R. Murrell on said note? It is true that Murrell would not have been bound to pay himself, not, as above suggested, because it was contrary to public policy, immoral, or illegal, but because he could not, in the nature of things, be a debtor to himself; but the appellee could become debtor to him, and by signing a note as payor, with E. R. Murrell as payee, he would make himself debtor to E. R. Murrell the amount that the note called for. Would the fact that E. R. Murrell's name was also signed to the note as payor render the note unobligatory upon the appellee? We think not. The fact that he also signed the note as payor would not render it, in any sense whatever, vicious, but he would not be bound, as above suggested, simply for the reason that he could not bind himself to pay himself a debt. Had a married woman signed with the appellee, her act would not have been void, but, nevertheless, the appellee would have been bound for the whole amount of the note. So, likewise, he would have been bound to E. R. Murrell if his name had been expressed in the note as payee, notwithstanding the fact that he did the nude act of trying to make himself, in conjunction with the appellee, debtor to himself. So, also, in the case supposed, had E. R. Murrell assigned the note to the appellant, the appellee, without doubt, would have been bound to him on the note, and under the statute supra E. R. Murrell would have been also bound to the appellant.
It is contended that as the word “myself,” as used in the writing, refers equally to E. R. Murrell or the appellee as payee, parol evidence cannot be introduced for the purpose of showing which one was meant. This is a mistake. Such evidence will not contradict the writing. Here the note names a payee, and the payee is one of two persons, but the writing does not inform which one is the person meant as the payee. Now, to show by extrinsic evidence which one of the two persons was meant is admissible. Such evidence does not contradict the writing, but merely explains which of two persons the pronoun “myself” refers to as the payee, the pronoun “myself” certainly referring to the one or the other as such payee. The rule is without exception, as far as we have been able to ascertain, that if a payee is expressed in a note, but in such man. ner as leaves it ambiguous as to the particular person meant, extrinsic evidence may be resorted to for the purpose of showing that fact: 2 Parsons on Contracts, sec. 650; McCullough v. Wainright, 14 Pa. St. 171.
In Jackson v. Sill, 11 Johns. 201, 6 Am. Dec. 863, it is said: “ You must always look beyond the instrument itself, to some extent, in order to ascertain who is meant."
In Garrison v. Owens, 1 Pinn. 471, it was held that parol evidence was admissible to show in what capacity a person signed his name, - whether as witness or party to the con. tract.
In the case of Kinney v. Flynn, 2 R. I. 319, the action was on an instrument of this kind: “I O U the sum of $160, which I shall pay on demand to you.” Signed, etc. Parol evidence was admitted to show who “ you
It is not competent to show what the parties secretly and in fact intended, when such intention contradicts the written contract; but when the inquiry is what they meant by the use of certain words in the writing which, as therein used, are ambiguous, extrinsic ovidence is always admissible: 1 Greenl. Ev. 282.
So it seems to be clear that parol evidence is admissible to
show who the parties meant by the word "myself” as the payee. This being shown, it would follow that the other party would be bound on the note as payor to such payee.
The petition as amended sets out a cause of action against the appellee, and the demurrer to the amended petition should have been overruled.
The judgment is reversed, and the cause remanded, with directions for further proceedings consistent with this opinion.
NEGOTIABLE INSTRUMENTS - The maker becomes liable apon e noto made payable to his own order by indorsement and delivery thereof: Hall v. Burton, 29 Ill. 321; 81 Am. Dec. 310, and note. A note payable to the order of “myself," signed by two persons, and placed by one in the hands of the other to be negotiated for his own benefit, may be transferred by indorsement by that other alone; and parol evidence is admissible to show the circumstances: First Nat. Bank v. Fowler, 36 Ohio 524; 38 Am. Rep. 610. Parol evidence is always coinpetent to show the real agreement and relation of the parties to a note: McAteer v. McAteer, 31 S. C. 313; Eastman v. Cleaver, 72 Mich. 167; Chapeze v. Young, 87 Ky. 476; First Nat. Bank v. Gaines, 87 Ky. 597; Kulenkamp v. Groff, 71 Mich. 675; 15 Am. St. Rep. 283, and note 287, 288; Adrian v. McCaskill, 103 N. C. 181; 14 Am. St. Rep. 788, and note.
CAMPBELL V. COMMONWEALTH.
(88 KENTUCKY, 402.) CRIMINAL LAW - MURDER — EVIDENCE. — On a trial for murder, where it
appears that a father, receiving information that his daughter was being abused by her husband, seized his pistol and went to the residence of the husband, and found the daughter and her children, at night, in the street, driven from her home, and on meeting her husband, shot and killed him, after some words had passed between them, evidence of the son-in-law's previous threats against the accused, and of previous violence against the wife, is competent to show the lawful purpose of the accused in going to the place of the tragedy; but the exclusion of such evidence is not rever. sible error, when other evidence admitted shows the good faith of the father in his effort to protect the daughter, and that she was in constant
danger of boilily harm from her husband. CRIMINAL LAW - MURDER — EVIDENCE OP SELF-DEFENSE. Where a father
has knowledge of cruel treatment inflicted upon his daughter by her hus. band, endangering her life, it is his natural and legal right to go to the rescue of his daughter, to prevent the infliction upon her person of cruel and inhuman blows; and if in his effort to do so he kills the husband, evidence of the threats of the latter to take the life of the accused, accompanied by an effort to do so, such as an attempt to draw a pistol at
the time, is competent on the issue of self-defense. CRIMINAL LAW - WHAT WILL REDUCE MURDER TO MANSLAUGHTER — IN.
STRUCTIONS - A father has the right to protect his daughter from the personal violence of her busband, and to go to his premises for that pur.
pose; and if he kills him in the heat of sudden passion, in an effort made in good faith to so protect his daughter, it is not necessary that a blow should be given, or a trespass committed on the person of the accused, to reduce the crime from murder to manslaughter. It is reversible erro to fail to so instruet the jury, even if a verdict of manslaughter is re
turned. CRIMINAL LAW – What will REDUCE MURDER TO MANSLAUGHTER – IN.
STRUCTIONS. — On the trial of a father for the killing of his daughter's husband, the jury should be instructed, when such instruction is justi. fied by the evidence, that as matter of law a father has the right to protect his daughter from great bodily harm against the violence of her husband; that if prior to the day of the tragedy she had been beaten by her husband so as to endanger her life or inflict upon her great bodily injury, of which the accused had knowledge, and that the violence was renewed on the night of tragedy, the father, on receiving information of the fact, had a right to arm himself and go to the residence of the hus. band to protect his daughter from his violence; and that if finding his daughter and her children expelled from their home into the street by the husband, and suddenly meeting him in the heat of sudden passion caused by the violence to the wife, the father shot him, not in necessary self-defense, and without malice, he is guilty of inanslaughter.
F. Hagan, for the appellant.
PRYOR, J. The appellant, Peter Campbell, was indicted by the grand jury of Jefferson County for the murder of bis son in-law, Michael Eady, the trial resulting in a verdict of manslaugliter, with the punishment fixed at confinement in the state prison for the period of ten years. The deceased and the daughter of the accused had been married about five years, and from the testimony in the case it was not long after the marriage before his conduct toward his wife became cruel and inhuman. His blows upon her person caused the premature birth of a child. She was driven from his home, at midnight, with her two infant children, or her presence sought by the police of the city at that hour upon a warrant issued at the instance of the husband, and the policeman, instead of giving her shelter in the station-house, carried her to the house of her father. At other times she sought shelter in the outhouses near their residence, or in the cabins of the humblest negroes in the vicinity, was abused and beaten in public by the husband, and denounced as a street-walker and common prostitute in the presence and hearing of her neighbors. This cruel treatment of the daughter was brought home to the father, who has been convicted in this case, and he remon. strated time and again with his son-in-law for this bruta)