Burnett v. Burnett , 68 Mont. 546 ( 1923 )

MR. JUSTICE GALEN

delivered the opinion of the court.

This action was instituted by the plaintiff to recover eight per cent interest from January 31, 1918, on $4,000 for two years and nine months, upon a promissory note, the principal amount of which was paid at maturity and by agreement accepted by the plaintiff without prejudice to her right to claim interest. The note reads as follows:

“$4,000. Jan. 31, 1918.

“Two years and nine months after date, for value received, [1] I promise to pay to the order of Elsie Burnett at the First Nat. Bank of Lewistown, Mont., four thousand dollars with interest at-per cent, per annum.

“W. 0. Burnett.”

Defendant’s answer pleads affirmatively an understanding had between the parties at the time of the execution of the note that it should be noninterest bearing. Issue was joined by reply. The case was tried before the court with a jury. The defendant undertook to introduce proof tending to show an agreement at the time of the execution of the note, not to pay interest. Upon objection such evidence was by the court rejected, as was also defendant’s offer of proof made to similar effect. On plaintiff’s motion a verdict was directed in her favor, upon which judgment was regularly entered for the sum of $880 and costs. The appeal is from the judgment.

But one question arises determinative of this appeal, viz.: "What is the legal effect of the note as executed, as respects plaintiff’s right to collect interest thereon?

Section 8421 of the Revised Codes of 1921 provides: “Where an instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given, and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in aecordance with the authority given, and within a reasonable time. ’ ’

There is no obligation placed upon the payee to complete the note by filling in the blank rate of interest. In this instance, the plaintiff not having done so, the defendant cannot be heard to complain, for he is in no worse position than if she had in fact inserted the figure 8. The contract is*to pay the note “two years and nine months after date, * * * with interest at-per cent per annum. ’ ’ The legal rate of interest fixed by law is eight per cent per annum, and in the absence of express agreement fixing a different rate, that is the rate to be allowed. The statute (Rev. Codes 1921, sec. 7725) reads: “Unless there is an express contract in writing fixing a different rate, interest is payable on all moneys at the rate of eight per cent per annum after they become dire on any instrument of writing, except a judgment, on an account stated, and on moneys lent or due on any settlement of accounts from the date on which the balance is ascertained, and on moneys received to the use of another and detained from him. In the computation of interest for a period of less than one year, three hundred and sixty-five days are deemed to constitute a year.”

In the absence of fraud or mistake, neither of which is alleged [2] in the present case, “when the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing.” (Sec. 10517, Rev. Codes 1921.) In this case the best and only evidence of the contract is the writing itself. (Id., sec. 10516.)

The written contract superseded all prior negotiations and agreements, and to it alone must we look to determine the obligation of the defendant. (Kelly v. Ellis, 39 Mont. 597, 104 Pac. 873; Rowe v. Emerson-Brantingham Co., 61 Mont. 73, 201 Pac. 316; State ex rel. Broadwater Farms Co. v. Broadwater Elevator Co., 61 Mont. 215, 201 Pac. 687; Cook v. Northern Pac. Ry. Co., 61 Mont. 573, 203 Pac. 512; Leigland v. Rundle Land & Abstract Co., 64 Mont. 154, 208 Pac. 1075; Webber v. Killorn, 66 Mont. 130, 212 Pac. 852.)

Evidence offered to show the understanding of the parties as to the payment of interest at the time of the execution of the note was properly excluded.

We think the correct rule and that sustained by both reason and authority is that a promissory note payable with interest without specifying the rate carries interest at the rate prescribed by law. (22 Cyc. 1530; Salazar v. Taylor, 18 Colo. 538, 33 Pac. 369; Hornstein v. Cifuno, 86 Neb. 103, 20 Ann. Cas. 1267, 125 N. W. 136; Wyoming Nat. Bank v. Brown, 7 Wyo. 494, 75 Am. St. Rep. 935, 53 Pac. 291; Franklin Nat. Bank v. Roberts Bros. Co., 168 N. C. 473, 84 S. E. 706.)

The judgment is affirmed.

'Affirmed.

Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.