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Pilmer v. The Branch of The State Bank at Des Moines.

is it right to say that the general meaning of currency is coin or its equivalent; and hence the maker must pay in a manner different from what the parties actually and really meant? To interpret contracts in this way is to incur the reproach of Lord MANSFIELD, by "laying a snare to entrap

mankind."

We believe, upon examination, and contrary to our first impression, that where a note is payable in currency, no rule is violated in receiving evidence of the general and customary meaning of these words at the place where the draft is payable.

The case of Thompson v. Sloan, 23 Wend., 71, is in point, and illustrates the question under consideration as well as the one above disposed of, with respect to the testimony of Hoyt Sherman. A note was made, and dated at Buffalo, N. Y., for $2,500, payable at a bank in that city "in Canada money." "The plaintiff's counsel offered to read the note in evidence, to which the defendant's counsel objected, insisting that being payable in Canada money, it was not negotiable; that Canada money meant bills of the Canada banks. The plaintiff thereupon offered to prove that at the time of making the note, the makers thereof desired to have it drawn, payable in Canada bank bills, but that he objected, and insisted that it should be made payable in Canada money, which testimony was objected to and rejected." The Court, per COWEN, J., say: "That besides being irrelevant, it was inadmissible, because it was direct, independent evidence of intention, as explained by the parties at the very time of drawing the note. Everything of this kind, which the parties declared, was merged by the written agreement. The legal effect of a written agreement cannot be controlled by this kind of evidence." Creeny v. Holly, 14 Wend., 26; Hurd v. Gallaher, 14 Iowa, 394. "Nor, in general, can a patent ambiguity be obviated by it. I speak of the confessions and declarations of the

Pilmer v. The Branch of The State Bank at Des Moines.

parties, which go to show what they meant by the words used in the writing. I do not deny that in such a case resort may be had to collateral circumstances." Smith v. Doe, 553; 1 Phil. Ev., 546; Pirsch v. Dickson, 1 Mason, 9, 11.

In the same case (Thompson v Sloan), the counsel for the defendant "offered to prove the meaning of the words Canada money, as generally understood at Buffalo by persons in trade there, which evidence was objected to by the plaintiff's counsel, but the objection was overruled and the defendants thereupon called several witnesses, who proved that Canada money was understood at Buffalo to mean bills of the Canada banks." In the Supreme Court, Mr., afterwards President, Fillmore for the plaintiff, insisted that the judge erred in receiving parol proof of the meaning of the words Canada money; they are English words, well understood and not requiring explanation. As well might proof be received to show that the word land or the word heir had a peculiar meaning in a particular locality. But the evidence was adjudged rightly received. The Court says: "The cases are quite numerous, that though the meaning of a word be perfectly well settled in general language, yet if a secondary meaning has been affixed to it in commercial usage, in a certain region of country, or among certain classes of men, this may be shown; and when the proof is clear, the use of the word in that region, or among those men, carries into the contract the signification thus established."

A similar view was taken in the subsequent case of Roberts v. Short, 1 Texas, 373. There, a note was given for

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one hundred and twenty-five dollars, in Texas money, at its current price in New Orleans." It was holden that parol evidence was admissible to fix the meaning and intention of the parties, by showing that the words "Texas money" meant Texas treasury notes. In the course of a

in a

Pilmer v. The Branch of The State Bank at Des Moines.

very able opinion, Ch. J. HEMPHILL makes the following remarks, which are strikingly apposite to the case at bar: "Words are always to be taken in the common sense in which they are used. The very same words are often used very different sense under different circumstances and at different times and places. For instance, in a place where there are a great many credit transactions, and no depreciated bank bills in circulation, and there was much of such currency used in trade, a promissory note, payable in bank bills, would mean such bills as are equivalent to gold or silver. But let a change come and a period of adversity and general depreciation succeed, and the very same words would be used with a different meaning, and would cer tainly be referred to such bank bills as were in common circulation, at their average depreciation. No one, at such a time and under such circumstances, in reading such a note, could believe the party intended promising to pay in bills equivalent to specie." 1 Texas, 381, 382.

The course of decision in Kentucky, on this subject, remarkably exemplifies the correctness of these observations and of the view taken by this Court. Chambers v. George, 5 Litt., 335 (A. D. 1824); Lampton v. Haggard, 3 Monr., 149 (1826); Id., 166; 2 J. J. Marsh, 463; and see, also, Cockrell v. Kirkpatrick, 9 Mo., 688; and Farwell v. Fay, 7 Mo., 595 and 597. This last case was upon a note payable "in currency." SCOTT, J., says: "Experience has taught us that there is a wide difference between the currency contemplated by the law, and the actual currency. The parties must have had this in mind, or they would not have deviated from the usual course, but would have simply made the bill payable in dollars." 7 Mo., 597. Same reasoning by CATON, Ch. J., 27 Ill., 502.

The Illinois cases (Galena Ins. Co. v. Kupper, 28 Ill., 332; C. F. & M. Ins. Co. v. Keiron, 27 id., 502, and the still more recent and as yet unreported case of S. M. &. F. Ins. Co. v.

Pilmer v. The Branch of The State Bank at Des Moines.

Treicher, 30 Ill., cited in March No., 1864, of Am. Law Reg., p. 312), hold a different doctrine. But their force is much weakened by the dissent of Ch. J. CATON (see 27 Ill., 502), who holds parol evidence competent to show the meaning of the terms "currency," and "Illinois currency." And Judge DRUMMOND, of the Federal Court (Newell v. Ins. Co.), admitted parol evidence of this kind. The same may be said of Morris v. Edwards, 1 Ohio, 189. There was a divided court, and the case is opposed in its reasoning to the New York, Kentucky, Texas, and Missouri cases before cited. 23 Wend., 71; 7 Mo., 595; 1 Texas, 503; 5 Litt., 335; 3 Min., 149, 166; 2 J. J. Marsh, 463; and see also the recent case of Rindskoff Bros. v. Barrett, 14 Iowa, 101.

It follows, from the foregoing, that we are of opinion that the Court did not err in allowing the witness Allen to testify what "currency" meant in the general mercantile or business understanding at Chicago, for such was the substance and effect of his testimony.

The view above taken is so well illustrated by the case of Goblet v. Beechy (3 Sim., 24; Wigram on Ex. Ev., 139, cited in Cowen & Hill's Notes to Phil. Ev., part 2, page 533), that we cannot forbear to allude to it. Nollekins, the celebrated sculptor, by his will, bequeathed all marble, tools, " mod," &c. to the plaintiffs. Parol evidence of an attesting witness was offered to show that she read over the will to the testator, and when she came to the word "mod," she asked him what it meant, and he replied, "models."

The Court held this testimony inadmissible, but allowed an inquiry as to the meaning of the term itself from the testimony of sculptors.

Such evidence does not infringe the rule, disallowing parol evidence to vary, control, or contradict a written contract. 1 Greenl. Ev., § 292; Rindskoff Bros. v. Barrett,

Myers v. McHugh.

14 Iowa, 101; Hopkins v. Grimes, Id., 73, and remarks of Lowe, J., pp. 80, 81.

On this part of the case, then, we conclude that extrinsic parol evidence of prior or contemporaneous conversations or contracts, is not admissible to show what the parties meant by the word "currency" in the draft in suit. But the evidence of bankers, business men and others, may be received to show what, in popular meaning or among business men, bankers, &c., the word "currency" meant at Chicago at the date of the draft, which is the basis of the plaintiffs' action.

To vary its ordinary and general meaning, the proof should be clear and decisive, and to affect the plaintiff it must likewise be shown that he was cognizant of this special or acquired meaning, so as to make it certain that he accepted the draft with reference thereto.

For the errors above indicated in receiving portions of the evidence of Sherman, the judgment below will be reversed, and the cause remanded for a new trial. Costs in court below to abide event, in this court to be paid by the appellee.

Reversed.

MYERS V. MCHUGH et al.

1. ATTORNEY'S LIEN. The lien of an attorney on the moneys due to his client and in the hands of an adverse party is binding from the date of notice to such party, and will not be postponed to proceedings in garnishment in which notice is subsequently served.

2. VOLUNTARY PAYMENT. In an action for the purchase-money of real estate, the defendant set up a non-performance of contract on the part of the plaintiff to procure the release of the dower. A creditor of the plaintiff caused the defendant to be garnished in proper proceedings, and then by the expenditure of a sum of $100, secured a relinquishment of dower which was satisfactory to defendant, whereupon he withdrew his defense

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