Woods v. North
| Decision Date | 11 June 1877 |
| Citation | 84 Pa. 407 |
| Parties | Woods <I>versus</I> North <I>et al.</I> |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.
Error to the Court of Common Pleas of Huntingdon county: Of May Term 1877, No. 99 D. W. Woods (with whom were Woods, p. p., and Williamson), for plaintiff in error.—A promissory note must be for a fixed and certain sum, and not for an amount that is variable or subject to any contingency: Story on Bills, sect. 42; Story on Prom. Notes, sect. 20-27; 1 Parsons on Notes 37, 38; Bayley on Bills, ch. 1, sect. 6; Cook v. Saterlee, Redf. & Big.'s Lead. Cas. on Bills of Ex. and Prom. Notes 8; Philadelphia Bank v. Newkirk, 2 Miles 442; Patterson v. Poindexter, 6 W. & S. 227; Overton v. Tyler, 3 Barr 346; Sweeney v. Thickstun, 27 P. F. Smith 131; Ayrey v. Fearnsides, 4 M. & W. 168; Fralick et al. v. Norton et al., 2 Mich. 130. Here the clause, "and five per cent. collection fee if not paid when due," renders the amount uncertain and variable. On the day the note falls due the amount is $377; on the next day it is $395.85. Can it be contended for one moment that the amount to be paid is entirely certain? If a valid note, does the endorser know at the time of his endorsement which of these amounts he will be called upon to pay? What obligation was there upon the endorser to pay the five per. cent. for collection? His liability was fixed when he endorsed the note, and could neither be increased or diminished thereafter. If the note had a clause waiving the exemption laws, would his endorsement make this waiver the contract of the endorser?
K. Allen Lovell, for defendants in error.—The amount is not so uncertain or contingent as to destroy the negotiability of the note. The cases cited by plaintiff in error are distinguishable from this case, for in them to ascertain the true amount of the notes sued upon it was necessary to resort to external evidence. Here there is no such necessity as the amount appears on the face of the instrument. In Patterson v. Poindexter, the instrument did not contain an express promise to pay, and in Overton v. Tyler and Sweeny v. Thickstun, contained warrants of attorney. In Nickerson et al. v. Sheldon, 33 Ill. 372, an instrument similar to the one in controversy was held to be negotiable. The tendency of our own and the courts of other states is to a more liberal construction of the law of commercial paper than formerly obtained: Zimmerman v. Anderson, 17 P. F. Smith 422; Hodges v. Shuler, 22 N. Y. 114.
The liability of the endorser is as broad as the contract of the maker. The exemption clause in a note is not analogous to this case as there the waiver is of a right personal to the maker.
It is a necessary quality of negotiable paper that it should be simple, certain, unconditional, not subject to any contingency. It would be a mere affectation of learning to cite the elementary treatises and the decided cases which have established this principle. It is very important to the commercial community that it should be maintained in all its rigor. Applying it to the note sued upon in this case, we are of opinion that it violates this rule. If it had been...
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