Strand Amusement Co. v. Fox ( 1921 )

The original notes, the negotiable or nonnegotiable character of which is a controlling inquiry on this appeal, are certified to this court for its inspection. They are on printed forms, the date, maturity, and amount being filled in in handwriting. On the lower left-hand side of the face of the paper, opposite the signature, these words are written in in ink, in the same handwriting and ink making the signature to the notes: "As per contract."

To my mind, the opinion of Monroe, C. J., in Continental Bank Trust Co. v. Times Pub. Co., 142 La. 209, 76 South. pp. 614,617, L.R.A. 1918B, 632 — a deliverance in immediate point — demonstrates the fact that the quoted words on these notes operated to destroy their negotiability. I shall not attempt to reiterate what that able jurist has so forcefully expressed.

The majority of this court makes material to their view the place on the notes where the quoted phrase was written; this notwithstanding it has been long decided by this court, as well as generally elsewhere, that matter indorsed on a note, even in the margin, becomes a part of the instrument "as much so as if it had been set forth in the body of the instrument." Seymour v. Farquhar, 93 Ala. 292, 8 So. 466; Sacred Heart Church v. Manson, 203 Ala. 256, 82 So. 498, 499, and other authorities therein cited. If this established doctrine is accorded appropriate deserved effect in this instance, a material consideration on which the majority predicated their conclusion would be removed. I see no reason to deny this rule's effect in the circumstances here involved.

Code, § 4974 (section 17 of the Uniform Negotiable Instruments Law) provides, through subdivision 4:

"Where there is conflict between the written and the printed provisions of the instrument, the written provisions prevail."

Unless it can be held that the written words "as per contract" are denied any effect whatsoever, they institute a conflict with the printed words (in the form here used) manifesting an unqualified "promise to pay to the order of" the payee. It is not to be supposed, much less assumed, that this phrase "as per contract" was written on the instrument without purpose or effect.