Page v. Cook

• Decision Date: 21 June 1895
• Parties: PAGE v. COOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 116

41 N.E. 115

PAGE v. COOK.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1895

The following is a copy of the note sued on "Boston, May 1, 1891. $500. On demand, after date, I promise to pay to the order of Hollis Bowman Page five hundred dollars, payable when payor and payee mutually agree. Value received. No. -----. Due, -----. Grace V. Cook."

COUNSEL

Hesseltine & Hesseltine, for plaintiff.

E.J Jones and C.W. Cushung, for defendant.

OPINION

MORTON J.

According to the literal construction of this note, although the defendant promises to pay the plaintiff the sum named when he demands it, he may escape the performance of his promise by refusing to agree with the plaintiff when it shall be paid. We think that it hardly could have been the intention of the parties to put it into the power of the defendant thus to avoid payment, and that it is more reasonable to construe it as meaning that it is payable when and after the payor ought reasonably to have agreed. Hawkins v. Graham, 149 Mass. 284, 21 N.E. 312; Sloan v. Hayden, 110 Mass 141; Black v. Bachelder, 120 Mass. 171; White v. Snell, 5 Pick. 426; Crooker v. Holmes, 65 Me. 195; Works v. Hershey, 35 Iowa, 340; Lewis v. Tipton, 10 Ohio St. 88. The promise to pay is absolute. It is only the time of payment which is left to future agreement. Evidently, it is expected, from the tenor of the note, that the parties will agree, and that a time will be fixed, and that the note will be paid. But no time is fixed within which that agreement is to be made. The law will therefore imply a reasonable time. Besides, it is the payment, not the nonpayment of the note, for which the parties are providing. If the payor does not, within a reasonable time, agree when the note shall be paid, there is nothing unjust, nor at variance with the real meaning of the contract, in holding that the payee may thereupon demand payment, and, if the note is not paid proceed to collect it. The case of Barnard v. Cushing, 4 Metc. (Mass.) 230, is distinguishable. The question chiefly discussed in that case was whether the indorsement on the note constituted a part of it, and the court held that it did. The indorsement expressly provided, not only that the payees would receive the amount of the note when convenient for the promisors to pay, but that they would not compel its payment. In bringing suit, the payees proceeded, therefore, in direct violation of...