Lee v. Balcom

• Decision Date: 17 May 1886
• Citation: 11 P. 74,9 Colo. 216
• Parties: LEE and another v. BALCOM.
• Court: Colorado Supreme Court

11 P. 74

9 Colo. 216

LEE and another v. BALCOM.

Supreme Court of Colorado

May 17, 1886

Appeal from county court, Arapahoe county.

This suit was originally commenced before GEORGE L. SOPRIS, a justice of the peace of Arapahoe county, by Balcom, the appellee, to recover of and from the defendants, George S Lee and M. J. Lee, the sum of $250, claimed to be due said plaintiff upon the following due-bill:

'DECEMBER 20, 1882.

'Due P Balcom the sum of two hundred and fifty dollars value received with interest at ten per cent per annum after four months from date

'GEORGE S. LEE,

'M. J. LEE per GEORGE S. LEE.'

The cause was tried before the justice, February 12, 1883, resulting in a judgment for the plaintiff for the sum of money mentioned in the instrument. Defendants thereupon appealed the cause to the county court, and the trial in that court occurred June 7, 1883, also resulting in a judgment for the plaintiff, Balcom. Objections were interposed to the introduction of the instrument in evidence in both courts. Before the justice the objection was simply that it was not due; in the county court the objection was that it was not due at the time the action was commenced before the justice.

Montgomery & Waybright, for appellants, George S. Lee and another.

Chas. S. Wilson and T. J. O'Donnell, for appellee, P. A. Balcom.

BECK C.J.

The only errors assigned, and now insisted upon by appellants, are that the county court wrongfully admitted the said instrument in evidence, and rendered judgment thereon in favor of the plaintiff, Balcom. Appellants' theory of the case is that the above-mentioned instrument is a promissory note, due four months after date, and, if not paid at maturity, to draw interest thereafter at the rate of 10 per cent. per annum. Appellee's theory is that it is an ordinary due-bill, with an interest clause added, and that the words 'after four months from date' refer only to the time when interest shall commence to run, if the note remains unpaid.

Due-bills and promissory notes are regulated, and the legal effect thereof determined, by statute, in this state, and not by the lex mercatoria. Under the provisions of the statute, any instrument in writing which either promises to pay a sum of money or article of personal property, or acknowledges any sum of money or article of personal property to be due to any other person, is contrued to be due and payable to the person named therein, and to be assignable by indorsement under the hand of the payee. An ordinary due-bill is invested with the character of a promissory note, whether it contains a promise to pay, or contains words of negotiability, or not. It is not essential even that it be expressed for value received. A mere acknowledgment of indebtedness is construed by the statute to import a promise to pay the same to the person named therein, or to the person or persons to whom it has been duly assigned.

The words of the statute (Gen. St. c. 9, §§ 3, 4) are as follows: 'Sec. 3. All promissory notes, bonds, due-bills, and other instruments in writing, made by any person, whereby such person promises or agrees to pay any sum of money, or article of personal property, or any sum of money in personal property, or acknowledges any sum of money or article of personal property to be due to any other person or persons, shall be taken to be due and payable to the person or persons to whom said note, bond, bill, or other instrument in writing is made.

'Sec. 4. Any such note, bill, bond, or other instrument in writing, made payable to any person or persons, shall be assignable by indorsement thereon, under the hand of such person, and of his assignee, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.'

These sections of out statute are literal copies of sections 3 and 4 of chapter 73 of the Revised Statutes of 1845 of the state of Illinois. The Illinois statute on the subject of negotiable instruments was revised by the legislature of that state in 1874; but the legal effect of the above sections in relation to this subject was not changed.

This due-bill, then, is invested with the characteristics of a promissory note, and it would have been negotiable as such by virtue of the statute if the interest clause, and the succeeding words, 'after four months from date,' had been omitted. Laughlin v. Marshall, 19 Ill. 390; Stewart v. Smith, 28 Ill. 397; Archer v. Claflin, 31 Ill. 306; Jacquin v. Warren, 40 Ill. 459. The addition of the words 'with interest at ten per cent. per annum after four months from date,' left the time of payment uncertain, and created a patent ambiguity in the instrument.

The question to be decided is whether the intention was that the sum of money mentioned therein was due at the date of the execution of the instrument, or was to become due four months thereafter. This is a question for the court alone, and it is proper for the court, in the interpretation of the language employed, to bring to its aid any collateral fact or circumstance, appearing upon the face of the instrument, which may aid in its interpretation. The rule is that the form of the instrument, together with the check-marks and erasures, if any, and the technical sense in which certain words and terms are employed by established commercial usage, may be considered. The import of words and terms, so established, will be held to be the sense intended by the parties using them. Best, Ev. § 228; Riley v. Dickens, 19 Ill. 29.

An illustration of these principles is afforded by the case of Hobart v. Dodge, 10 Me. 156. A promissory note was drawn and executed, a printed form being used, containing, among other printed clauses, the...