Chickering v. Greenleaf

6 N.H. 51

• Court: Superior Court of New Hampshire
• Decided: September 15, 1832
• Status: Published

Opinion

By the court.

The question in this case is, whet her the words infoheTnote, “ out of any property I may possess,” were intended as a qualification of the promise, or were merely intended to confine the remedy, for any breach of the promise, to the property of the defendant, without recourse to an arrest of the body ?

If the latter be the true meaning of the note, it is proper evidence to support either countin the declaration. For the promise must then be understood as an absolute promise to pay, in money, in two years, and these words, in the note, as containing a reservation merely collateral to the promise, and therefore properly omitted in declaring upon the note. 6 East, 564, Clark v. Grey; Law Pl. in assumpsit, 78—82; 4 Dowling and Ryland, 211, Coombs v. Ingram; 3 Mass. Rep. 225.

Rot if these words, in the note,were intended to qualify the promise, and make the amount of the note payable in any property Greenleaff might possess after the two years, then the promise is not absolute, but is upon the contingency of GreenleaPs having property ; and the promise is to pay, not in money, but in any property be may possess ; and the note is not proper evidence to maintain either count in the declaration.

On the whole, we are inclined to the opinion that these words were not intended as a qualification of the pronru ise- The promise is, to pay, not in, but out of any property lie may possess. If the intention had been to make the words a qualification of the promise, the words used would, in common parlance, have been “ in any properly I may possess.” The words used are more appropriate to denote what was to be liable to process, than what was to be received in payment. It is also to be remarked, that, although it is not uncommon to make a note payable in specific articles, yet, it is believed, that nobody would think of making a note payable in any property he might possess, or, in other words, in any property of his that could be attached or taken in execution.

But it may very well be conceived that the debtor might wish for a stipulation that should make his property only, liable for the debt. And we think it a strong argument in favor of this construction of the note, that these words are immediately followed by the clause, which declares, that the body shall not be liable to arrest, by virtue of any process.

We are of opinion that the plaintiff is entitled to judgment ; but as it appears that, by the contract, the body of the defendant was not to be liable to arrest, we shall order the clerk, in issuing the writ of execution, to omit-the clause which directs an arrest of the body.

Judgmen t for the plainti ff.