Nor can any condition be engrafted in the instrument by verbal testimony-as that it should be void unless others interested agreed to the settlement in which it was given ;1 or was to be void if certain bills should be paid at maturity; or was to be void or surrendered up in the event the case in which it was given for a fee were compromised, or in any other contingency. Nor can it be shown that it was only to be paid out of a particular fund or estate. But a delivery to the payee to take effect only upon a condition precedent, it has been held, might be shown as between the original parties.

§ 81a. Evidence of want of consideration is admissible between original parties. "Every bill or note imports two things: value received, and an agreement to pay the amount on certain specified terms. Evidence is admissible to deny the receipt of value, but not to vary the engage ment. ." The cases amply sustain the foregoing views, which seem to us altogether correct. It has been held that it is competent to show by parol that at the time a note was made, it was agreed that it should be held for nothing on the happening of a certain event.s But unless such event operated a failure of consideration, we can not perceive upon what principle such a view could be taken."

'Ely v. Kilborn, 5 Denio, 514. 'Dale v. Pope, 4 Littell, 166.

'Penny v. Graves, 12 Ill., 187.

'Brown v. Hull, 1 Denio, 400; Holt v. Moore, 5 Ala., 521; Adams v. Wilson, 12 Metc., 138; Spring v. Lovett, 11 Pick., 417; Haverin v. Donnell, 7 Smedes & M., 244; Underwood v. Simonds, 12 Metc., 275; Rose v. Learned, 14 Mass., 154; Brown v. Langley, 5 Scott N. R., 249; Sears v. Wright, 24 Me., 278; Jones v. Shaw, 67 Mo., 667; Dale v. Pope, 4 Littell, 166; Tower v. Richardson, 6 Allen, 351; Anderson v. Magruder, 10 Cal., 419; Calhoun v. Davis, 2 Ind., 532; Goddard v. Cutts, 11 Me., 440; Miller v. White, 7 Blackf., 491; Burge v. Dishman, 5 Ind., 272; Potter v. Earnest, 45 Ind., 418, Osborn, J.: A verbal condition can not be annexed to a promissory note." Ante, § 80.

"

Adams v. Wilson, 12 Metc., 138; Currier v. Hale, 8 Allen, 47; Campbell v. Hodgson, Gow., 74; Rawson v. Walker, 1 Stark, 361; Brown v. Spofford, 95 U. S. (5 Otto), 482 (1877).

"Benton v. Martin, 52 N. Y., 574; see ante, § 68.

'Abbott v. Hendricks, 1 M. & G., 795 (39 E. C. L. R.) See Small v. Clewley, 62 Me., 155.

Bissinger v. Guiteman, 6 Heisk, 277.

9

See ante, § 68.

Contemporaneous written agreements may be proven to control the effect of negotiable or other instruments as between immediate parties, and those having notice;1 and a purchaser, after maturity, of a negotiable instrument, would be bound by such an agreement when proven."

§ 816. Parol evidence is admissible to show that parties to bills and notes, apparently otherwise, are really in privity with each other; and if there be a latent ambiguity to explain it. And if the instrument be so obscurely written, or so mutilated or erased as to render its meaning uncertain, it is admissible to ascertain its terms. There are also some cases in which patent ambiguities may be resolved by parol testimony, which are elsewhere considered. As between privy parties a mistake in the execution of a written instrument—as, for instance, where the makers of a note intended it should be several as well as joint, but it was drawn only as a joint note-may be rectified in a court of equity, and the true intention shown." And as between them, if the party executed the instrument supposing himself liable for the amount, when in fact he was not, it is admissible to show it, the evidence going to prove want of consideration. And if by mistake the instrument were given for too large an amount, the better opinion is that it may be shown, for as to the mistaken excess there is partial want of consideration."

1 Goodwin v. Nickerson, 51 Cal., 166. * §§ 175, 176.

Paine v. Ringold, 43 Mich., 341.

'Rawstone v. Parr, 3 Russ., 424, 529; [184]; Benjamin's Chalmer's Digest, 252.

* Munro v. King, 3 Colorado, 238. 'Wharton on Evidence, § 956.

• §§ 418, 419.

Chitty on Bills, 191, [*166], 213,

Southall v. Rigg, 11 C. B., 481; Reardon v. Moriarty, 30 La. An., 120; I Parsons N. & B., 201.

'Claxon v. Demaree, 14 Bush (Ky.), 173; see §§ 179, 201. But see Downs Webster, Brayt., 79; and 2 Parsons N. & B., 505.

SECTION II.

THE FORMAL ELEMENTS AND PHRASES OF BILLS AND NOTES.

82. We have now to consider: 1st, the date; 2d, the amount; 3d, the time of payment; 4th, the place of payment; 5th, name of the drawer or maker; 6th, name of the drawee (if it be a bill); 7th, name of the payee; 8th, the terms of negotiability; 9th, the words of consideration; 10th, the words of advice; and 11th, the attestation.

3

83. In the first place, as to the date, this is usually written in the right-hand corner of the instrument; but no date is essential to the validity of a bill or note;1 and it is of no consequence on what portion of the paper it is written. If there be no date, it will be considered as dated at the time it was made, and parol evidence is admissible to show from what time an undated instrument was intended to operate, or to show that there was a mistake in the date. When a note without date is made for another's accommodation, the maker authorizes him to fill up the date as he sees fit. An indorsee has been allowed to prove against the maker a mistake in the date of a note, though by such proof the maker was cut off from a defence valid as to the payee. But a maker would not be admitted to prove a different date as against an indorsee

'Michigan Ins. Co. v. Leavenworth, 30 Vt., II; Mechanics', etc., Bank v. Schuyler, 7 Cowen, 337; Byles [*74], 166; Edwards, 150; Bayley, 21; Story on Bills, § 37.

"Giles v. Bourne, 6 Maule & S., 73; De la Courtier v. Bellamy, 2 Show., 422 Seldenridge v. Connable, 32 Ind., 375; Cowing v. Altman, 71 N. Y., 441.

Davis v. Jones, 25 L. J. C. P., 91 ; 17 C. B., 625 (84 E. C. L. R.); Richardson v. Ellet, 10 Texas, 190; Lean v. Lozardi, 27 Mich., 424; Cowing v. Altman, 71 N. Y., 441; Thomson on Bills, 37.

'Drake v. Rogers, 32 Me., 524.

7

Androscoggin Bank v. Kimball, 10 Cush., 373.

Drake v. Rogers, 32 Me., 524; Germania Bank v. Distler, 11 N. Y. S. C. (4 Hun.), 633.

for value, who relied on its apparent date.1 A mistaken date may be rectified in equity.

84. When the paper is payable at a specified time after date, it is almost indispensable that the date should appear on its face; for otherwise, if it be a bill, the drawee can not tell when it falls due, nor can an indorsee tell whether it be a bill or note. Nor can the holder know when to present it for payment, nor when it will be considered overdue. When the bill or note is payable at sight, or on demand, or on a certain day, the date is not so material; but to avoid difficulty, it should never be omitted. And it has been questioned whether or not the drawee might not reasonably refuse to accept or pay on undated bill, on account of embarrassments, in respect to remedy and evidence, to which he might be subjected.*

§ 85. Ante-dating, and Post-dating.-Bills, checks, and notes are sometimes post-dated or ante-dated for purposes of convenience; and the fact that they are negotiated prior to the day of date, is not a suspicious circumstance against which parties must guard. The indorsee of a bill which was post-dated, and indorsed by the payee, who died the day before the day of date, was held in an English case to have derived title through the indorser, and entitled to recover against the drawer,' and this case has been followed in the United States.8 So if a note bear date as of a time before the maker became of age, or as of a time when the maker was disqualified by being a feme covert, it may be shown, in answer to the plea of infancy or coverture, that the period of its actual date or delivery was when no such incapacity

Gray v. Wood, 2 Har. & J., 328; Richter v. Selin, 8 Serg. & R., 425; McSparran v. Neely, 91 Penn. St., 315.

* Brewster v. McCardel, 8 Wend., 478; Edwards on Bills, 151.

7 Pasmore v. North, 13 East., 517.

Brewster v. McCardel, 8 Wend., 478

or disqualification existed.1 And if the bill or note be antedated or post-dated, as of a time when it would be valid, it may be shown that it was dated or delivered at a time when the party had no capacity to enter into the contract, or that it came within the interdiction of a statute.2 And whenever there is a false date to evade the law, the instrument is void as to all parties having notice. If the date does not correspond with the declaration, the discrepancy must be explained. But where it is alleged that a note was made on a certain day (and not that it bore date on that day) it is not a fatal variance that it bears date on another day." When a person who agrees to become a party to a note, and the payee takes it on that assurance, the signature, though actually signed long after the emission of the note, will relate back to its date, and bind accordingly. And in general, time is computed in respect to an ante-dated or post-dated note with reference to the actual date it bears."

§ 86. Secondly, as to the amount or sum payable.This is usually specified in figures in the upper, or lower, left-hand corner of the instrument, as well as in writing in the body of it. Where a difference appears between the words and figures, evidence can not be received to explain it; but the words in the body of the paper must control; and if there is a difference between printed and

1 Pasmore v. North, 13 East., 517; Story on Notes, § 48. Bailey v. Taber, Mass., 286.

6

Serle v. Norton, 9 M. & W., 309; Byles on Bills [*75], 168; Edwards, 151. Fitch v. Jones, 5 Ellis & B., 238; Fanshawe v. Peet, 2 H. & N., 1.

'Coxon v. Lyon, 2 Camp., 307; Smith v. Lord, 2 Dow. & L., 759.

Harrington v. Brown, 77 N. Y., 72; see also Moies v. Bird, 11 Mass., 436; McNaught v. McClaughry, 42 N. Y., 22.

Luce v. Shaff, 70 Ind., 152.

Payne v. Clark, 19 Mo., 152; Riley v. Dickens, 19 Ill., 30; Mears v. Graham, 8 Blackf., 144; Saunderson v. Piper, 5 Bing. N. C., 425. In Smith v. Smith, R. I., 398, it appeared a bill bore the marginal figures "$175.94," and on its face called for the payment of "three hundred and seventy-five,' expressed as indicated. The clerk of the bank, where it was left for discount, observing the difference between the marginal figures and the words in the body, changed the marginal figure 1 to a 3, thereby conforming them. The