Weems v. Parker , 60 Ill. App. 167 ( 1895 )

MA Justice Pleasants

delivered the opinion of the Court.

Appellants made and delivered to E. Hurlburt an instrument in writing, of which the following is a copy:

“ Dolls. 275.00 Quincy, Ill., Oct. 30, 1893.

Ninety — after date we promise to pay to the order of E. Hurlburt two hundred and seventy-five no-100 dollars at First National Bank, Quincy, Ill., value received, with interest six per cent;” Avhich the payee assigned to appellee, who brought this suit in assumpsit thereon. By demurrer to special counts of the declaration the question was presented whether, notwithstanding the blank after the word “ninety,” it could be maintained. The demurrer was over-' ruled, and the defendants abiding, judgment was rendered for the plaintiff, from which they took this appeal, relying on the familiar rule that a patent ambiguity in a writing can not be corrected in an action at law.

In nearly all of the cases cited for appellants there was an alleged mistake in an actual and absolute expression, clear in itself, which it was sought to vary or contradict by parol evidence, there being nothing in the instrument itself to warrant the presumption of a different intention.

This, however, is not a case of mistake or ambiguity in such an expression, but of defect by omission, 'which is claimed to be properly supplied by presumption from the form and character of the instrument as it stands, without varying or contradicting the meaning of anything therein expressed. The distinction is clearly made and illustrated in Mercantile Ins. Co. v. Jaynes, 87 Ill. 199, which was a bill to correct a policy dated May 22, 1874, and yet by its terms made to expire on the second day of April of the same year. On demurrer to the bill it was urged that the mistake was merely clerical, and the intention of the parties so obvious that the correction could have been made by a court of law. But it was held that however obvious, it could not be corrected, or more properly speaking, disregarded at law, “ unless from other parts of the instrument there could be no doubt of the intention;” that “ courts of law possess no power to order changes made in the phraseology of written instruments offered in evidence. They simply adj udicate the rights of the parties upon the instruments as they are; but in construing them they seek for the intention of the parties, and if this can be discovered from all the language employed, clearly and satisfactorily, effect will be given to it, notwithstanding there may be some language used which, taken by itself, would not authorize the construction adopted.” The difficulty in that case was,. as was further observed, that there was “ no more reason to conclude, from the face of the policy, that the mistake was in the year than in the month;’3 and hence it was a case for equity.

If this power may be exercised by a court of law in the case of an expression, clear in itself, surely it may in case of a mere omission, where the intention is nevertheless manifest. We find it has in fact been often so exercised. Thus a paper in the form of a promissory note for “ one hundred and ninety-one, fifty cents, for money borrowed,” was held to mean “ one hundred and ninety-one dollarsetc. Beardsley v. Hill, 61 Ill. 354. And another, payable “ on or by the first of March, eighteen and sixty-eight,” to mean eighteen liwndred, etc. Massie v. Belford, 68 Ill. 290. “Four months after — for value received I promise to pay,” etc., meant “ after date.” Pearson v. Stoddard, 9 Gray, 199. Other instances, strictly analogous, might be cited.

In the note here in question the word “ ninety,” beyond all doubt, referred to time, and was used as an exact multiple of some recognized division of it. Th'e supposition that seconds, minutes, hours or years could have been intended is simply absurd, and the possibility that it might have, been weeks or months is too remote to. be considered in the case of a note for $275, with interest at the rate of six per cent. In Nichols v. Frothingham, 45 Maine 220, where the note was for $1,500, and reads, “ Six — after date we promise,” etc., the court said: “ Where there is nothing in the contract to lead to a different conclusion, and it is clearly apparent that some word indicative of the intention of the parties was intended to be used, but omitted by mistake, the parties may properly be presumed to have intended to use that word which is most commonly used by the same or other parties under the same or similar circumstances. Their probable intention, in the absence of anything to the contrary, may well be taken as their actual intention.” And further, “¡Notes payable in six days are seldom seen, while those payable in six years are not very common. The word most frequently in use in the commercial arrangements of men, not only in our cities but in the country, to designate the time when notes and bills fall due, is months,” Especially is this so where the numerical adjective used in connection with it is six.” It was accordingly held in that case to mean six months.

The same reasoning applied here would make it days. We doubt if a note at ninety weeks was ever made, and believe there are a hundred at ninety days where there is one at ninety months. We therefore hold in this case that it meant, as was alleged, ninety days; and the judgment will be affirmed.