Page v. Cook

Massachusetts Supreme Judicial Court

Page v. Cook

28 L.R.A. 759, 41 N.E. 115, 164 Mass. 116, 1895 Mass. LEXIS 188

Massachusetts Supreme Judicial Court·Decided June 21, 1895·Published·Cited by 21 cases

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, she 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. White v. Snell, 5 Pick. 425. Sloan v. Hayden, 110 Mass. 141. Black v. Bachelder, 120 Mass. 171. Hawkins v. Graham, 149 Mass. 284. Crooker v. Holmes, 65 Maine, 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 non-payment, 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 Met. 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 their agreement. Possibly, if the question arose now, a different result might be reached from that arrived at in that case.

According to the terms of the report the entry must be,

Verdict set aside, and judgment for the plaintiff for the amount of the note, with interest from the date qf the writ.

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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, she 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. White v. Snell, 5 Pick. 425. Sloan v. Hayden, 110 Mass. 141. Black v. Bachelder, 120 Mass. 171. Hawkins v. Graham, 149 Mass. 284. Crooker v. Holmes, 65 Maine, 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 non-payment, 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 Met. 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 their agreement. Possibly, if the question arose now, a different result might be reached from that arrived at in that case.

According to the terms of the report the entry must be,

Verdict set aside, and judgment for the plaintiff for the amount of the note, with interest from the date qf the writ.

Page v. Cook, 28 L.R.A. 759, 41 N.E. 115, 164 Mass. 116, 1895 Mass. LEXIS 188 (Mass. 1895).

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