Capen v. Crowell ( 1874 )

Yirgin, J.

On June 14, 1870, the defendant (residing in Waterville, Me.,) gave to the plaintiff (residing in New York) two notes on thirty and sixty days respectively, payable in socks, and three promissory notes on three, four and twenty-four months respectively.

On July 5, 1870, the defendant sent to the plaintiff by express, socks sufficient to pay the thirty day note, and proposed by letter to the plaintiff to substitute a three months promissory note for the sixty day note. On July 8, 1870, the plaintiff inclosed the defendant’s letter, together with the thirty day note and the sixty day note, in a letter written by himself to the cashier of a bank in Waterville, with instructions to surrender the thirty day note on the defendant’s paying the expressage on the socks, and to exchange the sixty day note as proposed; all of which was done; and the defendant paid the substitute (three months’ note) at its maturity.

The original three months note was sued, but subsequently paid, according to its terms, by the defendant’s attorney.

The present action is on the four months promissory note. At the nisi prius term, the defendant seasonably made affidavit, under the rule, that the note in suit had been materially altered since it was executed, without his consent, by adding the clause, “with interest at rate of two and one-half per cent, each month, after due, until paid.” The defendant was seasonably notified to produce at the trial the four notes taken up; but he produced neither the sixty day note nor its substitute, alleging that they were lost. The plaintiff contended that the thirty day note produced showed on inspection that it had been mutilated. The original three months note sued, and paid by the defendant’s attorney, produced, contained the same interest clause as the note in suit.

The defendant testified that none of the notes contained the interest clause when he signed them; and that he did not know that the one paid by his attorney did until some time after it had been paid.

On the other hand, the plaintiff testified that the clause was in each of the original notes when they were signed by the defendant, and put in the latter’s letter proposing the exchange and before alluded to.

The cashier, called by the plaintiff, testified substantially ; that he received the plaintiff’s letter with the notes and defendant’s letter inclosed; that he entei'ed the notes on luis books ; that he had no recollection or knowledge of the transaction except such as he inferred from his books; that he always followed the instructions of his correspondents; that his books show a note given for one received, and that it was paid at maturity; and that he could not testify that it contained the interest clause.

The plaintiff thereupon offered in evidence his letter of July 8, 1870, to the cashier, which instructed the cashier among other things to “insert in note you take, the 2-| per cent, penalty clause, which you will observe in the others.” The letter was admitted against the objections of the defendant — and the question is — was it admissible. "We are of the opinion that the ruling was erroneous.

The letter made no reference to the note in suit.

So far as it referred to the first two original notes, it simply intimated that they contained such a clause by calling the attention of the cashier to them.

Neither can it be admitted as an answer to the defendant’s letter of July 5, 1870, for it was not written to, nor seen by, the defendant ; and if it had been, the matter therein contained in relation to the interest clause, was not in reply to anything written by the defendant.

Whether the note contained the interest clause or not was a fact susceptible of direct proof. It was not a fact which the directions in the letter could explain or illustrate. The writing of the note was independent and subsequent to the directions contained in the letter and was not necessarily governed or controlled by them. Nutting v. Page, 4 Gray, 584.

Exceptions sustained.

Appleton, C. J., Dickerson, Barrows and Danforts, JJ., concurred.