Danforth v. Sterman

Deemer, J.

1- instilments: fty? memoran By its terms the note in suit was due June 1, 1911, and it was transferred to plaintiff on May 18th of that year. In the lower left-hand comer of the note, and in the margin, after what we understand was a printed word “due,” was written the word and figures “May 15,1911,” making the sentence read, “Due May 15, 1911,” which, if correct, was before the transfer of the note. Defendant insists that this memorandum became a part of the note and is controlling as to its maturity, and that the court erred in instructing the jury that the instrument matured June 1, 1911. The only testimony as to how the memorandum came to be made was from Stark, the payee thereof, who said that he made it and also testified as follows: “Q. State to the jury, if you know, why the word ‘May 15th’ is written there or how it came to be written there. A. Well, I don’t have any explanation to make of that except that I probably had the date of the delivery of the deed in mind when I put that there was the time they were to get their deed. Q. You just got the two mixed up? A. Yes, sir.” Upon this record, it is clear that the memorandum does not control or affect the terms of the note itself, and that the trial court did not err in its instructions with reference to the maturity thereof. Daniel on Negotiable Instruments (4th Ed.), section 155; Benedict v. Cowden, 49 N. Y. 396 ( 10 Am. Rep. 382 ); Carr v. Welch, 46 Ill. 88 ; Way v. Batchelder, 129 Mass. 361 . Under the testimony, it would have been error to have submitted the date of the maturity of the note to a jury.

2' fláe™urchaser • ciencyce: suffi’ II. Plaintiff claimed that he took the note in payment or part payment of an obligation due him by the payee, Stark, and defendant insists that he took it as collateral merely to a pre-existing debt. This matter was sub-m^e(3. to the jury, and no complaint is made the iustructions, save to say that there was no evidence to support plaintiff’s claim. In this counsel are evidently mistaken. Plaintiff testified *325 squarely that he took the note as an $80 payment upon a debt which Stark was then owing him; that Stark’s obligation was an oral one; and that there was no writing upon which to credit the payment, but that he took it as a payment, and not as security. The jury found for plaintiff on the issue, and we are concluded by the finding.

There is no error in the record, and the judgment must be, and it is — Affirmed.

Ladd, C. J., and Gaynor and Withrow, JJ., concur.