Cherry v. Sprague

• Decision Date: 29 November 1904
• Citation: 187 Mass. 113,72 N.E. 456
• Parties: CHERRY v. SPRAGUE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 113

72 N.E. 456

CHERRY v. SPRAGUE.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1904

COUNSEL

Aug H. Read, Wilfred J. Gaffney, and Chas. A. Mendall, for plaintiff.

Chas H. Sprague, pro se.

OPINION

BARKER, J.

The instrument declared on as a promissory note is of the following tenor:

'$218.00. Sioux Falls S.D. April 15, 1895. Four months after date for value received I promise to pay to the order of U.S. G. Cherry Two Hundred and Eighteen Dollars, with interest at six per cent. per annum, at the Union National Bank, Sioux Falls, South Dakota.

'Unpaid interest shall bear interest at twelve per cent. and if suit is commenced the customary attorney's fee shall be added to the amount of the judgment and taxed up as part of the costs in the cause.

'Due Aug. 15, '95.

'No. 3,682.

'[Signed] Odin Fritz.

'[Indorsed]

'Charles H. Sprague.

'C. Everett Washburn.

'U. S. G. Cherry.'

The instrument contains an unconditional promise to pay at a day certain the definite sum of $218, with interest at 6 per cent. per annum from August 15, 1895, to the order of the plaintiff. If this were all, it would, of course, be a promissory note. But the additional stipulations do not change the promise into a conditional one in any respect, and they relate solely to the manner in which the unconditional promise to pay the definite sum may be enforced if broken. This distinguishes the case from Haskell v. Lambert, 16 Gray, 592; Costelo v. Crowell, 127 Mass. 293, 34 Am. Rep. 367; Sloan v. McCarty, 134 Mass. 245; and Moore v. Edwards, 167 Mass. 75, 44 N.E. 1070. In each of those cases the added stipulations made the contract conditional, or the promise one to pay an indefinite amount, or not to pay the sum named absolutely and at all events. It is settled that the incorporation into an instrument which contains an unconditional promise to pay a definite sum of money of additional stipulations does not of itself necessarily deprive the instrument of the character of a promissory note. A recital that an additional rate of interest will be paid after maturity, and that the maker deposited certain collateral, and a statement of the terms upon which the collateral has been deposited, and on which it may be sold upon nonpayment of the note, does not have that effect. Towne v. Rice, 122 Mass. 67, 73-75, and cases cited. The test is that intimated by Mr. Justice Field in Sloan v. McCarty, supra. If the additional stipulation relates to the manner in which the unconditional promise to pay a definite sum may be enforced, and does not change the promise from one to pay that sum absolutely and at all events, or change the general nature of the whole contract, the instrument is a promissory note, notwithstanding the additional stipulations relating to the manner of enforcement of the promise if it shall be broken.

In the present instance, as the suit is brought by the original promisee, it is of no importance whether the instrument is negotiable or nonnegotiable, and we do not consider or decide that question.

As the instrument was a promissory note, and as it was payable in South Dakota, and was sent to the payee by mail, and received by him in that state, it was a South Dakota, and not a Massachusetts, contract. Nashua Savings Bank v. Sayles, 184 Mass. 520, 522, 69 N.E. 309, and cases cited; Callender, McAuslan & Troup Co. v. Flint (Mass.) 72 N.E. 345.

It is contended upon the plaintiff's brief that by the law of South Dakota the stipulation as to an attorney's fee was void, and the instrument a negotiable promissory note, and, further, that under the statute of that state the 18th day of August, 1895, being a Sunday, the note matured on August 19, 1895, the day on which it was protested for nonpayment. The brief cites in support of these contentions the cases of Chandler v. Kennedy, 8 S D. 56, 65 N.W. 439, and National Bank of Pierre v. Feeny, 9 S.D. 550, 70 N.W. 874, 46 L. R. A. 732, and Rev. Civ. Code S.D. 1903, § 2236, p. 844. But the bill of...