Offutt v. Ayres , 23 Ky. 356 ( 1828 )

Judge Mills

delivered the opinion of the court.

This is a summons and petition against Benjamin Ayres, on the following note:

“On the twenty fifth of December, eighteen hundred and twenty five, I promise to pay S. Offutt one hundred and fourteen dollars, for the hire of Harry. For B. Ayres,

Lex. Feb. 28, 1825 W. B. Ayres.”

There was a demurrer to the petition, and that demurrer was sustained by the court below, and judgment rendered for the defendant, from which the plaintiff has appealed.

The question is, is this note to be taken on its face as the note of B. Ayres, or W. B. Ayres? If of the former, the judgment is wrong — if the latter the judgment is right.

Whether W. B. Ayres was or was not the agent of B. Ayers, is not material. If he was not the agent, then there could be no question that he alone is bound in the note. If he was the agent, it was competent for him to interpose his own credit and deal upon it, while dealing for his principal; and the question then turns, upon the meaning of the instrument. On whom does it impose the obligation, on .the principal or the agent.

Upon the letter of the instrument there can be no doubt. According to its grammatical import, it is the undertaking of W. B. Ayers. His signature to the note is in the same case, with the pronoun, “I,” which precedes; and “I,” is nominative to the verb “promise.” Transpose the words as we please, the same meaning follows their letter. If the note read, “L W. B. Ayres, promise to pay for B. Ayres” the sense would have been so striking', that there could not have been any dispute, without violence to the letter; and yet the order in which the words are placed, leaves the sense the same, and places every noun and verb in the same case, and mode and tense, in which they would stand in the way supposed. The position only makes the sentence a little more obscure.

It may be said, that the note is an inacurate way of executing an authority, and that it is so customary, as to demand of the court a construction of the words different from their proper meaning. It is true, that instances may be found, where the meaning of a word is changed by its popular use, so far t from the proper sense, that to effectuate the intention of the parties in the use of it, courts have adopted the popular acceptation. But this doctrine ought not to be carried to the extent of changing grammatical construction, and transposing nominatives, and placing one case of nouns for another. To do this, it is necessary to aver and prove mistake or fraud, in order to change the instrument itself. Until this is done, he who has undertaken, or “promised,” must be left bound by that undertaking, or promise; and it would be erroneous to release him from the literal and proper meaning of his undertaking.

With this accords the cases of McBean vs. Morrison, 1 Marsh. 545; and Duval vs. Craig, 2 Wheat. 56-7.

The judgment, the Chief Justice dissenting, must be affirmed, with costs.