Conner v. Routh , 8 Miss. 176 ( 1843 )

Opinion of the court by

Mr. Justice Clayton.

This was an action of assumpsit upon a promissory note in which there is an omission of some word that would express the time when it is payable. It reads, “Twenty-four'after date,” not saying whether days, months, or years were intended. The declaration avers that months were intended. Upon the trial the defendants objected to the reading of the note to the jury. The plaintiff then offered to explain the ambiguity by a witness, but the court suffered the note to be read, and refused to hear other evidence. To this the defendants excepted. Yer.dict and judgment were rendered for the plaintiff, and the case comes by appeal to this court.

It is urged that the note should have been excluded, because it was by law a note payable on demand, and therefore varied from the note- described in the declaration. When no time of payment is fixed in a note it is payable on demand. 5 Cow. 517; 8 Johns. 192. But this is not a note of that kind. It is evidently payable at some time after the date, either days, months or years. The holder could not disregard its words and go for immediate payment. He might have filled it -up with the time really intended, and which had been omitted by mistake, and such alteration would not vitiate. Chitty on Bills, 206-7. But surely if the plaintiff had declared as upon a note payable on demand, this note could not have been read in support of the allegation.

If the court had thought the note was void for uncertainty, then it should have been withheld from ’ the jury. ' We do not think that it was void. Words are often supplied to carry out the reasonable intention of the parties; and in pleading the instrument is described as if it contained the omitted words. In one case the word pounds was supplied, Coles v. Hulme, 15 Com. Law Rep. 300; in another the word hundred, Waugh v. Russell, 1 Marshall; in another the name of the bargainor, Lloyd v. Lord Say and Sele, 1 Bro. Par. Cas. 379; and in another the name of the obligee, Langdon v. Goole, 3 Lev. 21. See Kincannon v. Carroll, 9 Yerg. 11.

In Boyd v. Brotherson, 10 Wen. 93, a note was intended to be made for eight hundred dollars, but by mistake the two latter words were omitted. The note was indorsed, and afterwards altered by the maker by the insertion of those words. In an action against the indorser, the question as to the sum intended to be inserted was submitted to the jury, and upon the testimony of the maker they found for the plaintiff.

In this case the issue was for the jury to determine. The averment that the note was payable twenty-four months after date, had to be proven to their satisfaction. The note was a necessary link in the chain of evidence, and was properly permitted to go before them. They were satisfied of the truth of the averment, and we see no reason to disturb their finding.

Judgment affirmed.