Edgerton v. Aspinwall ( 1820 )

HosMER,.Ch. J.

The contract in this case does not admit of one harmonious and consistent construction ; it must, therefore, be examined in all its pails, that the intention of the parties may be ascertained, with all the: precision possiblb.

In the first places Thomas Aspinmall, the defendant, executed his promissory note to the plaintiff, John Edgerton, promising to pay him 300 dollars in twelve months from» date, with1 annual interest until the principal should be paid. Thus far the engagement was absolute, bothin relation to the sum payable, and the time of payment. In passing, I cannot bub remark, that the stipulation to pay the interest annually, until-the principal should be paid, would be both unusual and unnecessary, if the obligation were intended:!» be absolute, and-payable at the expiration of a year from its date ; for the promisee would have the rights after the note fell due, at all1 times, to coerce the payment of both principal and interest.

To the note is subjoined; a condition, expressing the consideration on which it was given, and the agreement of the parties. It appears to have been made “ for the purpose of indemnifying Peter Aspinwall, that his wife, Ruth Aspinwall, should not, in any way or manner, be chargeable to him.”— It was not, then, an obligation to pay money in all events, but a contract;of indemnity. The: condition, in reference to the agreement, has this expression : “ Itis agreed and fully understood, that said note is to be paid within four days after such, time, as the said John Edgerton shall secure to Peter Aspin-wall 300 dollars more than the above note, either in real or personal estate.” This presents the'contract in a new aspect. Although it was to indemnify Peter Aspinwall from any indebtedness, which his wife should create, the promised sum of 300 dollars was to be paid into the hands oí Edgerton, within four days after he should secure the said Peter a certain sum in property, real or personal. From this it results, that the ■«noney was not payable to Edgerton, until he should make the security prescribed. This inference is confirmed, by the subsequent part of the condition, in the following words : “ And said John Edgerton having, this day, given a bond to said Peter, for the above purpose,” (that is, for the purpose of indemnity) “ if said John shall fulfil on his part, or at the decease of said Ruth, the above note is to be paid to the said John, with the above additional sum of 300 dollars, to him or his heirs.”— Although the condition of the bond is not set forth, it is a fair presumption, that it obliged Edgerton to convey the real or personal estate before mentioned to Peter Aspimimll, and that this was the fulfilment referred to, in the preceding sentence. On the best consideration I am able to give an agreement so inartificial and confused, I am convinced, that the transfer of the real and personal estate, is a condition precedent to the accruing of a cause of action on the note in suit; and as this fact has not taken place, the defendant, so far as relates to the principal of the note, has not violated his contract.

But in reference to the interest, that is due by express agreement. That, the defendant has engaged to pay annually, until the principal is paid; and although the principal sum should not ever be payable, the engagement to pay the interest is too explicit to be denied.

I would grant a new trial, on the ground that the plaintiff has right to the interest on the note remaining unpaid.

The other Judges were of the same opinion.

New trial to be granted.