Overton v. Tyler

• Decision Date: 15 July 1846
• Citation: 3 Pa. 346
• Parties: OVERTON <I>v.</I> TYLER et al.
• Court: Pennsylvania Supreme Court

Page 346

3 Pa. 346

OVERTON v. TYLER et al.

Supreme Court of Pennsylvania.

July 15, 1846.

July 15.

IN error from Common Pleas of Bradford county.

Case and Overton, for plaintiff in error.—The days of grace are part of the contract. 1 Pet. S. C. Rep. 25; Thomas v. Shoemaker, 6 Watts & Serg. 179; nor will the fact, that a warrant of attorney is

attached, alter or in any way affect that right — it is to be construed as if the note and the warrant were distinct instruments. A suit, then, not being maintainable before the 5th of June, of course no execution could issue for the same debt at an earlier period.

Elwell and Williston, contrà, contended, that by the agreement the judgment was to be entered as for an amount due on the 1st of June, and that the character of the note, if such it was, merged in that contract. But there never was a privilege of the days of grace; the judgment could not pass from hand to hand; and subsequent holders would certainly be bound to defalk any payments made on account of the judgment. These are principles irreconcilable with the rules regulating commercial paper. 3 Penna. Rep. 374; 1 Watts, 135; 1 Miles, 162; 6 Johns. Ch. Rep. 281; 2 Term Rep. 640.

GIBSON, C. J.

No case like the present, nor any thing from which a principle applicable to it can be drawn, is found in the books. The note is for the payment of money; it is payable to bearer; and it is payable absolutely: yet it is obvious that it was not intended to be negotiable in a commercial sense, and that the maker was not to have the usual days of grace. The debt is still between the original parties; and the contract by which it was created is to be interpreted, like any other, by their actual meaning. If they meant to make, not a promissory note, within the statute of Anne, but a special agreement with power to enter up judgment on it, they are bound by the result as they themselves viewed it. Such is one of the principles of Patterson v. Poindexter, and Boker v. Hazard, 6 Watts & Serg. 231, in which, however, there was no express promise. Nor would a subsequent holder take the paper on any other terms than those expressed in it. It has in it all the parts of a promissory note; but it has more: it contains not only a warrant to confess judgment with a release of errors, but an agreement to waive appraisement and stay of execution. But a negotiable bill or note is a courier without luggage. It is a requisite that it be framed in the fewest possible words, and...