Costelo v. Crowell

127 Mass. 293, 1879 Mass. LEXIS 78

• Court: Massachusetts Supreme Judicial Court
• Decided: August 19, 1879
• Status: Published

Opinion

Lord, J.

Whether, by the general law merchant, the note in suit would be deemed a negotiable note is a question upon which the authorities are by no means uniform. See Brill v. Crick, 1 M. & W. 232; Jury v. Barker, E. B. & E. 459; Williams v. Waring, 10 B. & C. 2; Haussoullier v. Hartsinck, 7 T. R. 733; Wise v. Charlton, 4 A. & E. 786; Fancourt v. Thorne, 9 Q. B. 312; Treat v. Cooper, 22 Maine, 203; Arnold v. Rock River Valley Railroad, 5 Duer, 207; Sanders v. Bacon, 8 Johns. 485; Cummings v. Gassett, 19 Vt. 308.

In this Commonwealth, however, it is settled by an uninter* rupted series of decisions, that any language, put upon any portion of the face or back of a promissory note, which has relation to the subject-matter of the note, by the maker of it before delivery, is a part of the contract; and that if by such language payment of the amount is not necessarily to be made at all events, and of the full sum in lawful money, and at a time certain to arrive, and subject to no contingency, the note is not negotiable. Jones v. Fales, 4 Mass. 245. Springfield Bank v. Merrick, 14 Mass. 322. Heywood v. Perrin, 10 Pick. 228. Makepeace v. Harvard College, 10 Pick. 298. Wheelock v. Freeman, 13 Pick. 165. Barnard v. Cushing, 4 Met. 230. Cota v. Buck, 7 Met. 588. Osgood v. Pearsons, 4 Gray, 455. Palmer v. Ward, 6 Gray, 340. Hubbard v. Mosely, 11 Gray, 170. Haskell v. Lambert, 16 Gray, 592. Way v. Smith, 111 Mass. 523. Stults v. Silva, 119 Mass. 137.

The words written upon the face of the note, “ given as collateral security with agreement,” being incorporated in and made part of the contract, indicate with clearness that there may be a contingency, to wit, the performance of the undertaking to which this is collateral, in which it would not be payable; and so it lacks that element of negotiability which requires that at all events a sum certain shall be payable at a time certain. As this is decisive of the case, it is unnecessary to consider any other question. Exceptions sustained.