LOVENBERG v. HENRY, 140 S.W. 1079

DIBRELL, J. This suit was brought in the district court of Galveston county on May 14, 1908, by Ellen R. Henry against Ben Levy as administrator of the estate of B. P. Cooper, deceased, to recover on a promissory note for $6,000, alleged to have been given plaintiff by B. P. Cooper on or about February 9, 1S93, due and payable 12 months after date. Pending administration of the estate of B. P. Cooper, the administrator Levy died and letters of administration were granted to the defendant I. Lovenberg, Jr., in July, 1908, and the suit by amended petition was continued against the defendant I.

Lovenberg, Jr., as administrator of the estate of said Cooper. After making all necessary formal allegations in regard to the execution and delivery of the note sued on, it was alleged that B. P. Cooper about August 20, 1900, by his written indorsement on the back of said note renewed his promise to pay same On or before 1904. The written indorsement was in words and figures as follows: “On or before 1904 I promise to pay within note. Galveston, August 20,1900. [Signed] B. P. Cooper.” On April 8,1908, the note sued on was presented to the administrator of B. P.

Cooper for allowance and the same was rejected, because, as stated by the administrator, it was barred by limitation. The judgment of the lower court sustained the special exception of defendant which presented the plea of limitation, and in effect held the note sued on barred by limitation. The Court of Civil Appeals reversed and remanded the cause, holding the note not barred by the statute of limitation. Henry v. Lovenberg, 128 S. W. 675. The question' presented for decision is novel, but not difficult of solution.

We have not been able to find any casé" of like import with the one here presented, nor have we been cited to any authority that would materially assist us in determining the question as upon precedent. It is clear upon reason that the maker of the note intended to renew his promise to pay sdme, and that he intended to fix the time for payment as on or before the year 1904.

The indorsement as written, it is true, does not contain the words, “the year,” but we think that under the rule well established that courts may seek for the intention of the parties, and from the paper itself, in the light of the circumstances of its execution, determine what was actually intended by the parties. Applying this rule we think no violence is done the parties to say they intended to make the note payable on or before the year 1904. That the rule here adopted in ascertaining from the indorsement itself the intention of the parties may not seem arbitrary we quote from the case of Nichols v.

Frothingham, 45 Me. 225, 71 Am. Dec. 539. That was a suit upon a note written as follows: “$1,500.00 Boston, May 1st, 1854. “Six after date we promise to pay, to the order of P. Monson, etc.” It was contended by the defendant that the note was void, because no definite time of payment was stated. The court read into the note the word “months,” so that the note was made to read, “six months after date,” etc.

In justification for making such interpolation the court said: “In the construction of the note, the intention of the parties is to control, if it can be legally ascertained; and the authorities cited in defense clearly show that an ambiguity, such as appears upon the face of the note, is not open to parol explanation.

It is a patent ambiguity, which is well defined as one which is ‘produced by the uncertainty, contradictoriness or deficiency of the language of an instrument, so that no discovery of facts, or proof of declaration, can restore the doubtful or smothered sense, without adding ideas which the actual words will not of themselves sustain.’ In such a case, however, it is competent for the court to determine from the paper itself, in the light of the circumstances in which it was given, what was the actual intention of the parties.

Otherwise, the maker might reap an unjust advantage from his own neglect to use clear and appropriate language, which the law does not allow, when it is possible to ascribe to the language, under the circumstances in which it was used, any appropriate legal effect.

Where there is nothing in the contract to lead to a different conclusion, and it is clearly apparent that some word indicative of the intention of the parties was ihtended to be used, but omitted by mistake, the parties may properly be presumed to have intended to use that word which is most commonly used by the same or other parties under the same or similar circumstances. Their probable intention in the absence of anything to the contrary, may well.be taken as their actual intention.” Upon the same reasoning in the case of Connor v. Routh, 7 How. (Miss.) 176, 40 Am.

Dec. 59, the Supreme Court of Mississippi where a note was made payable “twenty-four after date," held that such note was not void for uncertainty and that it was proper to leave the question to a jury to determine what time was intended by the parties. In the case of Pearson v. William Stoddard et al., 9 Gray (Mass.) 199, suit was had upon the following promissory note: “$100.00 Lowell, June 2, 1856. “Pour months after, for value received I promise to pay,” etc.

It was contended by the defendant' in that case that the note was not by its terms due when the suit was brought, it having been instituted four months after date, contending that the note might have been “four months after sight,” or “four months after demand.” The court supplied the word “date,” and made the note read, “four months after date.” So that we may read the indorsement in the light of its obvious meaning, “on or before the year 1904, I promise to pay within note.” It remains to determine from this language the due date of the note sued on.

There can' be no doubt but that Cooper had the option'to pay off said note at any time before the year 1904, but upon the advent of the year 1904 his option ceased and became an obligation to pay at all events.

The words “on or before” are of such common use in promissory notes as to be well understood to mean, “immediately at or at any time in advance of,” “a period named.” The year 1904 had its beginning with January 1st, of that year, and the note sued on as we construe the meaning of the renewal became due on January 1st, 1904, and not having been sued on until May 14, 1908, was barred by the statute of limitations of four years.

Some confusion seems to exist as to the meaning of the words, “on or before.” These words are defined in 29 Cyc. 1492, as follows: “With relation to a specified time, or event, immediately at or at any time in advance of, the instant of such time or event; that is to say, to the exclusion of any time after that to which the proposition has relation, not after.” Judge Cooley in the case of Mattison v. Marks, 31 Mich. 421, 18 Am.

Rep. 197, which was a suit on a note made payable “on or before” a day named, and in which it was contended that the note was void for uncertainty of time of payment, said: “The legal rights of the holder are clear and certain; the note is due at a time fixed, and it is not due before. True, the maker may pay sooner if he should choose, but this option, if exercised, would be a payment in advance of the legal liability to pay, and nothing more.

Notes like this are common in commercial transactions, and we are not aware that their negotiable quality is ever questioned in business dealings.” That such notes are valid negotiable instruments seems to be the well-settled law of this state. Fry v. Houston, 6 Tex. Civ. App. 710, 26 S. W. 284; Brainerd v. Bute (Civ. App.) 44 S. W. 575.

The contention that since in a note made payable on or before a day certain, the maker has the entire day in which to pay, that therefore in the case at bar, if the note sued on was due on or before the year 1904, the maker would have the entire year in which to pay is not well founded. The law gives the entire day for the reason that it does not recognize fractions of .a day, but there is not the same reason for extending the rule where a note is made payable on or before a year named.

The judgment of the Court of Civil Appeals will be reversed and the judgment of the district court affirmed, and it is so ordered.