Newman v. Kettelle , 30 Mass. 418 ( 1832 )

Wilde J.

drew up the opinion of the Court. Whatever may have been the actual intention and understanding of the parties to the contract in question, their rights and liabilities must be determined by its terms as reduced to writing. It is a note of hand signed by the defendants’ testator, payable in cash, and on demand, but it was not to draw interest during the life of the maker ; and it is con tended by the defendants’ counsel, that the clause relating to interest was intended to limit and control the generality of the words “on demand.” It may have been so intended, but the intention is not expressed with sufficient certainty to control the express terms of the promise. It has been frequently held, that a promissory note payable on demand, with interest after a limited term, was due presently, and would support an action brought before the expiration of the term limited. Loving v. Gurney 5 Pick. 15 ; and this note cannot be distinguished from notes of that description. ^*

We are therefore of opinion that an action might have been well sustained immediately after the note was given, and consequently this action is legally barred by the statute of limitations : so that according to the agreement of the parties, the verdict on the second issue is to be altered, and stand as a verdict for the defendants.

* The following decision was made at March term 1835, in Suffolk.

Ebenezer Wright et al. v. Charles D. Fisher. Assumpsit on a promissory note payable “ on demand with interest after four months.” The note was dated on the 10th of May 1834, and the action was commenced on the 8th of the ensuing September.

The action was defended, pursuant to St. 1833, c. 143, by certain creditors of the defendant, who contended at the trial, that the note was capable of two constructions; by one, it was payable on demand, with interest to be computed from the expiration of the four months; by the other, it was payable on a demand to be made after that term; and they offered collateral evidence to show that the latter was the true construction. The judge who tried the cause was of opinion that the note was payable on demand, so that the action was not commenced prematurely, and he rejected the evidence. A default was entered, subject to the opinion of the whole Court.

The cause was argued by L. Shaw and B. Sumner for the defendant, and by Morey for the plaintiff.

Parker C. J. said the Court were of opinion that there was no ambiguity in the note, and that the extrinsic evidence was rightly rejected. The meaning of the note is, that it should be paid on demand, but that if it should lie four months without any demand, interest should then begin to accrue.

Judgment for the plaintiff.