Wilson v. Tucker

10 R.I. 578

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1873
• Status: Published

Opinion

Potter, J.

Assumpsit on several promissory notes. Several of the notes in suit are expressed to be for rent, and all except the two earliest in date have a memorandum indorsed that the note is to be paid according to a contract between Comer Waterman, deceased, of whose estate the plaintiff is administrator, and the defendant. The jury, if there were no evidence, confessedly might well infer from the writing and from the custody of the papers, that these memorandafwere made at the time of the execution of the notes, or at least before their delivery to the deceased. The defendant claims, that the agreement referred to is an agreement in writing dated December 12, 1861, by which Comer Waterman, the defendant, complaining of his inability to pay rent, agrees not to press for the rents that may hereafter become due, but to wait until the mill runs as in ordinary times with profit, when the rents are to be paid in full as follows : the regular quarterly rent first, and ten per cent, on the back rents until they are paid; and this agreement is on condition tbe defendant was not to employ two men whom he names. This agreement, it seems, related to the rent of a mill. A lease is referred to in the agreement, but none is produced. We think there is no doubt but that the memorandum on each note is to .be considered a part of it, and that parol evidence may be resorted to in order to show what agreement or instrument is intended to be referred to. Heywood v. Perrin, 10 Pick. 228; Leeds et al. v. Lancashire, 2 Campb. 205; Hartley v. Wilkinson, 4 Campb. 127; S. C. 2 M. & S. 25; Effinger, Guardian, v. Rich ards, Administrator, 35 Miss. 540; Cholmeley v. Darley, 14 M. & W. 344; Pool v. McCrary et al. 1 Geo. 319.

If the suit had been on the lease, and the defendant had claimed that the time of payment had been extended, some consideration would have been necessary to support an agreement to extend. But here the suit is on notes, and as to all notes containing this memorandum, it is the same as if the time of payment, that is, when the mill could run at a profit, had been mentioned in the body of the note, and needs no further consideration. But this agreement, so conditioned, is not a promissory note, and cannot be declared on as such. The plaintiff must declare on his special agreement, and must aver and prove that the circumstances have happened which fix the time of payment. New trial granted.