Opinion
May 14, 1929.
July 1, 1929.
Negotiable instruments — Promissory notes — Amount — Act of May 16, 1901, P. L. 194 — Statement as to interest — Deferred payments — Legal rate of interest — Certainty of rate.
1. A note which provides for the payment of a stated sum with interest, is not a negotiable instrument under the Negotiable Instruments Act of May 16, 1901, P. L. 194, unless it clearly appears, from the note itself, that at any given date the principal and interest will always aggregate a sum certain.
2. A note which says in one place that the principal is payable "with interest thereon at the rate of eight per cent per annum from date until fully paid," and in another place that "deferred payments are to bear interest from maturity at ten per cent per annum," is not a negotiable instrument.
3. "Deferred payments __________ from maturity," in the clause quoted, refers to all payments which the note says are to mature in the future; hence the note does not make certain what rate of interest is to be paid after the stated payments mature.
4. Where a note is payable with interest, but no rate is stated, legal interest will be presumed to have been intended, and certainty as to the amount to be paid will result.
5. A note is a negotiable instrument if interest is to be paid at one rate before maturity, and at another rate afterwards, for certainty of amount will always result; but where either one of two rates specified may apply to the same period of time, uncertainty results and the note is not a negotiable instrument.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appeal, No. 121, Jan. T., 1929, by plaintiff, from order of C. P. Cumberland Co., Feb. T., 1928, No. 22, refusing to take off nonsuit, in case of First National Bank of Miami, Florida, v. Mary Bosler and Sue Bosler. Affirmed.
Assumpsit on promissory note. Before BIDDLE, P. J.
The opinion of the Supreme Court states the facts.
Case tried by the court without a jury.
Nonsuit; refusal to take off. Plaintiff appealed.
Error assigned was order refusing to take off nonsuit, quoting it.
Frederick J. Templeton, with him Caleb S. Brinton, for appellant. — The notes are negotiable: M. M. Bank v. Pizor, 24 Pa. C. C. R. 273; Smith v. Shippey, 182 Pa. 24; Bank v. Crowell, 148 Pa. 284; Ernst v. Steckman, 74 Pa. 1; Zimmerman v. Rote, 75 Pa. 188; Zimmerman v. Anderson, 67 Pa. 421. Joseph P. McKeehan, for appellees.
Argued May 14, 1929.
The First National Bank of Miami, Florida, brought suit, in its own name, upon three notes; the trial judge, being of opinion that they were not negotiable instruments, proffered leave to amend, so that the suit would be in the name of the payee to plaintiff's use; the offer was rejected; a nonsuit was entered which the court in banc refused to set aside; and plaintiff now appeals. The judgment is right.
The first note, which was duly signed by defendants, is as follows:
"$2187.50 Miami, Florida, March 16, 1925
"__________ On or before eighteen months after date, for value received, I promise to pay to the order of Shoreland Company $2,187.50 at its office in Miami, Florida, with interest thereon at the rate of eight per cent per annum from date until fully paid. Interest payable semiannually. The maker and endorser of this note further agree to waive demand, notice of non-payment and protest; and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees for making such collection. Deferred payments are to bear interest from maturity at ten per cent per annum semiannually."
The other two notes are exactly the same as the one quoted, except that they are payable 24 and 30 months after date. We need consider but one of the three reasons urged as sustaining the action of the court below.
Our Negotiable Instruments' Law of May 16, 1901, P. L. 194 (which, so far as appears, is exactly the same as that of Florida, where the notes were made payable), provides in section 1 that "An instrument to be negotiable __________ must contain an unconditional promise or order to pay a sum certain in money"; and, in section 2, "The sum payable is a sum certain, within the meaning of this act, although it is to be paid: (1) With interest __________" Taken together, these provisions mean that if the note provides for the payment of a principal sum and interest, it must clearly appear, from the note itself, that at any given date the two will always aggregate "a sum certain"; otherwise, though the note might be for "a sum certain" so far as concerns the principal, it might be uncertain as to interest, or vice versa, notwithstanding that the statute declares it must always "contain an unconditional promise to pay a sum certain."
It will be observed that, in its first sentence, the note says the principal is payable "with interest thereon at the rate of eight per cent per annum from date until fully paid," which must mean whether before or after maturity. The last sentence says: "Deferred payments are to bear interest from maturity at ten per cent per annum." "Deferred payments __________ from maturity" can only refer to all sums which the note says are to mature in the future, that is, postponed payments; and this is the meaning given in the Century Dictionary, Webster's New International Dictionary and Black's Law Dictionary. So, also, the words are construed in Goss Printing Press Co. v. Daily States Pub. Co., 109 La. 759, where the contract of purchase, out of which the note there in suit grew, stated "All deferred payments to bear interest at 6 per cent per annum." The "deferred payments" were held to apply to all "credit portions of the purchase price."
The present note has, therefore, two irreconcilable clauses, so far as concerns the interest payable after maturity; one specified in the clause that the debt is to bear eight per cent interest until fully paid, whether before or after maturity, and the other which states that the debt is to hear interest at ten per cent per annum after maturity. It does not contain, therefore, as it "must," in order to be negotiable, "an unconditional promise __________ to pay a sum certain."
Plaintiff has given us no authority supporting its contention on this question, and our own researches have disclosed none. We have found cases holding that if interest is provided for, but no rate is stated, the legal rate will be presumed to have been intended, and certainty as to the amount to be paid will result. So, also, we have found others which say that a sum certain obtains, if one rate of interest is charged until maturity and a different rate thereafter. Under these latter cases, if the note in suit had said that interest was to be payable "at the rate of eight per cent per annum from date until [maturity, not until] fully paid [as it in fact says] __________ deferred payments to bear interest from maturity at ten per cent per annum," it would have been negotiable. The uncertainty pointed out makes it non-negotiable, however.
Our own investigation has disclosed but three clearly relevant cases, and they all lead to the conclusion that such a note as this is not negotiable. In Davis v. Brady, 17 S.D. 511, the note was for $400 "with interest from date until fully paid at the rate of ten per cent per annum, payable annually on principal and all overdue unpaid interest. If the said interest is not paid when due, it becomes part of the principal and draws interest at twelve per cent per annum until paid." It will be noticed that the language there is substantially the same as here. The note was held to be nonnegotiable. In Story v. Lamb, 52 Mich. 525, the court reached the same conclusion, where the body of the note provided that there should be payable to John A. Lamb $150 with ten per cent interest, and, at the time of delivery, he signed a subjoined clause stating that "If this note is paid within one year no interest to be paid." So, too, a note payable "with interest the same as savings banks pay," was held not to be negotiable, in Whitewell v. Winslow, 134 Mass. 343. The foregoing cases were not decided under the Uniform Negotiable Instruments Law, but, on the point referred to, the law was not altered by that statute. Under it, we have found no cases either for or against our conclusion herein.
The judgment of the court below is affirmed.