This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In order to be negotiable a contract must possess certain elements.1 It must be in writing. If in writing, a lead pencil is sufficient though not to be commended.2 Writing in this sense includes printing and the like.3 Since a negotiable contract must pass either by delivery or by indorsement and delivery, an oral negotiable contract is an impossibility.4
11 Cox v. Kirkwood, 59 Okla. 183, 158 Pac. 930; Voris v. Birdsail, - Okla. - , 162 Pac. 951
12 First National Bank v. Watson, 56 Okla. 495, 155 Pac. 1152.
1A negotiable instrument is one "which runs to order or bearer, is payable in money, for a certain definite sum, on demand, at sight, or in a certain time, or upon the happening of an event which must occur, and payable absolutely and not on a contingency." Hatch v. Bank, 94 Me. 348, 80 Am. St. Rep. 401, 47 Atl. 908 [citing, Roads v. Webb, 91 Me. 406, 410, 64 Am. St. Rep. 246, 40 Atl. 128]; Sivils v. Taylor, 12 Okla. 47, 69 Pac. 867.
See also, Farmers' Loan & Trust Co. v. McCoy & Spivey Bros., 32 Okla. 277, 40 L. R. A. (N.S.) 177, 122 Pac. 125. The addition of other terms does not destroy the quality of negotiability if the requisite elements are not affected by such addition; Bonart v. Rabito, 141 La. 970, 76 So. 166.
2 Reed v. Roark, 14 Tex. 329, 65 Am. Dec. 127; Closson v. Stearns, 4 Vt. 11, 23 Am. Dec. 245.
3 Weston v. Myers, 33 111. 424; Farmers' Bank v. Ewing, 78 Ky. 264, 39 Am Rep. 231.
A telegram may be a sufficient writing. Selma Savings Bank v. Webster County Bank, 182 Ky. 604, 2 A. L. R. 1136, 206 S. W. 870.
See also, Iowa State Savings Bank v. City National Bank, 183 la. 1347, L. R. A.1918F, 169, 168 N. W. 148.
4 Louisville Banking Co. v. Gray. 123 Ala. 251, 82 Am. St. Rep. 120, 26 So.
As will be shown in the following sections, no part of a negotiable contract can be oral. Whatever validity an incomplete written contract may have, it is impossible that it be negotiable.5 However, it has been held that where a bill or note does not show where it is to be paid, an oral agreement fixing the place of payment may be shown for the purpose of proving such demand as will bind the drawer and the indorser.6 The surrounding circumstances may, however, serve to explain words which would otherwise be indefinite. Thus where a note is made payable "twenty-five after date," the surrounding circumstances may be resorted to in order to show that "days" is the word omitted.7
The fact that a negotiable instrument contains blanks does not destroy its negotiability if the holder of such instrument is authorized to fill up such blanks.8 The delivery of an instrument which contains blanks, by one who knows that it is incomplete, confers implied authority to fill in such blanks, at least in a reasonable time.9 A blank left for the name of the person for whose liability collateral has been deposited with the note does not render the note non-negotiable,10 since, by construction, it will be assumed that reference is made to the maker of the note.11
205. This rule has been repeateo in express terms in the Negotiable Instruments Law. Thorp v. Mindeman, 123 Wis. 149, 107 Am. St. Rep. 1003, 68 L. R. A. 146, 101 N. W. 417. Accordingly, in such contracts extrinsic evidence is inadmissible which would be admissible under ordinary contracts in writing. See Sec. 2151 et seq.
5 New Haven Bank Nat. Banking Association v. Jordan Co., 92 Conn. 705. 104 Atl. 392; Chestnut v. Chestnut, 104 Va. 539, 2 L. R. A. (N.S.) 879, 52 S. E. 348.
The Negotiable Instruments Act provides that the acceptance of a check must be in writing; but a telegram is a compliance with this provision. Selma Savings Bank v. Webster County Bank, 182 Ky. 604, 2 A. L. R. 1136, 206 S. W. 870.
See also, Iowa State Savings Bank v. City National Bank, 183 Ia. 1347, L. R. A. 1918F, 169, 168 N. W. 148.
A telegram is sufficient even if it is telephoned to the telegraph company. Selma Savings Bank v. Webster County Bank, 182 Ky. 604, 2 A. L. R. 1136, 206 S. W. 870.
See Sec. 2151 et seq. and 2312. Other branches of this subject are best considered in connection with the parol evidence rule.
6 Pearson v. Bank, 26 U. S. (1 Pet.) 89, 7 L. ed. 65; Meyer v. Hibsher. 47 N. Y. 265.
7 Boykin v. Bank, 72 Ala. 262.
8 Farmers' Loan & Trust Co. v. Brown, 182 Ia. 1044, 165 N. W. 70; Linthicum v. Bagby, 131 Md. 644, 102 Atl. 997; Phillips v. Hensley, 175 N. Car. 23, 94 S. E. 673; Brown v. Thomas, 126 Va. 763, 92 S. E. 977.
9 Farmers' Loan & Trust Co. v. Brown, 182 Ia. 1044, 165 N. W. 70; Linthicum v. Bagby, 131 Md. 644, 102 Atl. 997; Phillips v. Hensley, 175 N. Car. 23, 94 S. E. 673; Brown v. Thomas, 120 Va. 763, 92 S. E. 977.
10 Oleon v. Rosenbloom, 247 Pa. St. 250, L. R. A. 1915F, 968, 93 Atl. 473.
11 Oleon v. Rosenbloom, 247 Pa. St. 250, L. R. A. 1915F, 968, 93 Atl. 473.
A written agreement which is glued to a bill of exchange is to be regarded as a part thereof.12 and it can not be detached therefrom without the consent of the maker.13 A memorandum pinned to a check is not a part thereof, and the facts stated in such memorandum are not available as against one who takes such check in due course of business for value and without notice.14
The instrument which must be in writing, such as the negotiable instrument, is subject to most of the rules which govern the construction of the ordinary written contract,15 and such principles of construction may justify the courts as treating a contract as being in writing, and thus as being negotiable when, in the absence of such principles of construction, such contract would be incomplete as far as the writing was concerned, or it may render non-negotiable a contract which, but for such provisions, would be negotiable. In case of a conflict between the written and printed,16 or typewritten,17 provisions of the contract, the written provisions prevail as in case of other written contracts.18
If two written provisions are inconsistent,19 as where the amount in figures is larger than the amount in words,20 extrinsic evidence is inadmissible to show that one of such provisions was intended by the parties.
Under other circumstances, the application of the general principles of construction may tend to render the written contract non-negotiable. While a reference in the instrument to a contract, under which the instrument in question is given, does not serve to render such instrument non-negotiable if it is made by way of a statement of the consideration,21 or by way of security,22 such reference may be made in such terms that the two instruments must be construed together;23 and accordingly it may render the instrument in question non-negotiable.24
12 Bothell v. Schweitzer, 84 Neb. 271. 22 L. R. A. (N.S.) 263, 120 N. W. 1129.
13 Bothell v. Schweitzer, 84 Neb. 271, 22 L. R. A. (N.S.) 263, 120 N. W. 1129.
14 Southern Sand & Material Co. v. People's Savings Bank & Trust Co.,
101 Ark. 266, 142 S. W. 178. 15 See ch. LXIII.
16 First National Bank v. Greenlee,
102 Neb. 180, L. R. A. 1918D, 224, 166 N. W. 559.
17 This is true especially if it appears that the written figure is inserted as a correction of an error in the typewritten figures. Acme Coal Co. v. Northrup National Bank, 23 Wyom. 66. L. R. A. 1915D, 1084, 146 Pac. 593.
18 See Sec. 2043.
19 Payne v. Commercial National Bank, 177 Cal. 68, 169 Pac. 1007.
20 Payne v. Commercial National Bank, 177 Cal. 68, 169 Pac. 1007.
21 See Sec. 2324.
See also, Dollar Saving & Trust Co. v. Crawford, 69 W. Va. 109, 33 L. R. A. (N.S.) 587, 70 S. E. 1089.
22 See Sec. 2325.