
    Lewis Smith vs. Jordan Elder, use of Edward Francis.
    Where a demurrer was filed to a plea and the record did not state in so many words, that the demurrer was sustained; hut it appeared in the record that the defendant, under a judgment of respondeat ouster, plead again ; Held, that the record showed sufficiently that the demurrer had been sustained.
    Where pleas were filed on which issues were taken, and another plea to which a demurrer was sustained, and on a judgment of respondeat ouster, the defendant plead a similar plea, to which a like demurrer was filed, of which last demurrer the record shewed no disposition, but the parties went to trial on the issues made up ; Held, that under the circumstances, this court would presume that the parties waived this last demurrer.
    Where a suit was brought in the name of one for the use of another, the nominal plaintiff, where his testimony is against himself, is a competent witness, though objected to by the usee, if he do not himself object to testify.
    Where a note was payable “ in the notes of the chartered banks of Mississippi at par,” it is not competent to explain by parol the kind of funds in. which the note was payable; as there was no latent ambiguity in the note; the note meaning that the notes of chartered banks were to be taken as at par, that is, without discount or premium.
    To an action on a note payable “ in the notes of the chartered banks of Mississippi at par; ” a plea of tender in the notes of “ chartered banks of Mississippi,” without averring that they were “ at par,” is good.
    In error, from the circuit court of Hinds county; Hon. John, H. Rollins, judge.
    Jordan Elder, who sued for the use of Edward Francis, sued Lewis Smith on the following note :
    “ On or before the 15th day of May, 1839, we promise to pay Jordan Elcier, or.e thousand dollars in the notes of the banks of th® state of Mississippi at par, at the office of Charles Hill,, in Raymond, for value received.
    Witness our hands the 1st day of October, 1838.
    Lewis Smith,
    Chakles Hill.”
    
      On the note were these indorsements “ Chartered banks are meant within, C. Hill.” “ 11th December, 1838, received from C. Hill, two hundred and ninety-nine dollars, and sixty-six cents, to be applied as of 15th May, 1839.” “ I assign the within balance of seven hundred dollars for value received to Edward Francis, March 14th, 1839. G. W. Osburn.”
    The defendant pleaded 1. “Nil debet” to the sum credited by indorsement, and to the remainder pleaded that he was ready to pay at the maturity of the note, and so notified Francis ; that the money has ever since been kept ready, and is now brought into court. Issues were taken on both parts of this plea.
    2. The defendant plead further, a tender of the balance due in notes of the Mississippi and Alabama Railroad Company, the Bank of Lexington, and Commercial Bank of Rodney, averring that those were chartered banks of Mississippi; that Francis refused the tender; that defendant had always been ready, since the tender, to pay the same, and brings it into court. The plaintiff demurred, and there is in the record neither joinder in the demurrer nor a judgment upon it. The record then recites that the defendant plead as under the order “ respondeat ouster.”
    ■ 3. A plea setting out that the action was founded on a note for $1000 payable in the notes of the banks of the state of Mississippi at par, and indorsed at the time of making it, by one of the makers, with the assent of the payee, “ Chartered banks are meant within,” and with a credit indorsed for $299 $¡¡ on the 11th day of December, 1838. The plea then avers that defendant was ready to pay the balance due on the note at the time when and the place where it was payable, in notes of chartered banks of Mississippi; that he afterwards tendered payment in such notes, viz. notes of the Mis-wssippi\ and Alabama Railroad Company, of the Bank of Lexington, and' *nf the Commercial Bank of Rodney, which Francis refused; that defendant has always been ready tc pay them, and brings the same money into court.
    To this the plaintiff demurred, and defendant joined in demurrer, but no judgment was rendered upon it, so far as appears of record. The case was then submitted to a jury, and a verdict rendered for $853 |g¡, and judgment given for that amount.
    A motion was made by defendant for a new trial, and overruled ; whereupon a bill of exceptions was tendered and signed, and the evidence embodied therein. Two witnesses testified that Charles Hill, one of the makers of the note, remained at his office the whole of the day on which it was due, and the next, avowedly to receive and answer a demand for payment of the balance due on the note; that two days afterwards he ■made a tender in the notes above described, which was refused ; that he kept the same notes ever after until the filing of the plea in this action, when he deposited them with the clerk of the court, who produced them at the trial.
    The defendant also called in Elder, the payee in the note, to whom the plaintiff’s counsel objected, but the court permitted him to testify if he did not object. He proved that it was the understanding at the time, that the notes of Mississippi banks should be at all times taken at par in payment of the note; that the addition ‘ chartered banks,’ was added at_ his own request, to prevent a payment being made in the^ of the country; and that the tender proved wap his understanding of the obligation of the note. Alis tes timón; was objected to also, as inadmissible in substance. '* $
    The defendant prosecutes this writ of error. J
    Dabney, for plaintiff in error,
    cited Marlow v. Hame, 6 How 187; Bailey v. Gaskins, lb. 519.
    
      E. W. F. Sloan, on the same side.
    1. As to the admissibility of the testimony of Elder, I think no doubt can exist. Suppose, for a moment, that before the contract was reduced to writing, Smith had agreed to pay Elder gold or silver, or their equivalent in bank paper, it is not reasonable to suppose the words “ in the notes of the banks of the state of Mississippi at par,” would have been used.
    2. Again, the words “ chartered banks are meant within,” indorsed upon the instrument, limit the maker to the payment of the notes of such banks only as are chartered. This is clearly a restriction ; and wholly inconsistent with the idea that such bank notes only as were worth their nominal value in gold and silver could be received in payment, upon the face of the contract.
    Now the meaning of the word “ par,” is this, “ without discount or premium.” It is the meaning attached to the word by the legislature of this state, in providing that the debtors of banks should have the privilege of paying those banks in their own issues. See-the Statute Laws of 1840, p. 21, 22, § 2.
    3. It is obvious then, we contend, that Smith undertook merely to pay, and Elder to receive payment in notes of chartered banks, without discount or premium, in other words, at their nominal value. It is contended, however, that the term “par” admits of another and different construction, and recourse is had to its use and application in the commercial world to show this. If so, then it creates a latent ambiguity, and the evidence of Elder was admissible to determine the sense in which the parties used it. As in Goddard v. Bulow, 1 Nott & McCord, 45, where the words “ British weight ” having been introduced into a written contract, it was held, that as the word “ weight” had two meanings, gross and nett, this was such a latent ambiguity as to warrant the introduction of parol testimony. Or in Livingston v. Ten BroeJc, 16 Johns. R. 14, where the privilege of “ cutting timber to be used in building” had been granted by deed, parol evidence was held admissible to show that the parties intended to apply the word building as well to the erection of fences as houses. Also where the word freight was used in a written contract, it was held that parol evidence might be introduced to determine whether it was intended to apply to the goods on board the ship, or the earnings of the ship. On this point see Peisch v. Dickson, 1 Mason 11; Ely v. Adams, 19 Johns. R. 313; Dupree v. McDonald, 4 Des. 345 ; McMeen v. Owen, 1 Y ates, 135 ; 2 Dallas, 173; Doe ex dem Jersey v. Smith, 2 Brod. & Bing. 553; Sug. on Vend. 181, Am. Ed. 1846.
    
      
      A. R. Johnston-, for defendant in error,
    cited Marlow v, Hamer 6 How. 189; Blackmore v. Negro Phil, 7 Yerg. 452; Bailey v. Gaskins, 6 How. 519.
   Mr. Justice Thachek

delivered the opinion of the court.

This was an action upon a promissory note of the following tenor, to wit: “ On or before the 15th day of May, 1889, we promise to pay Jordan Elder, one thousand dollars, in the notes of the banks of the state of Mississippi at par, at the office of Charles Hill, in Raymond, for value received. Witness our hands the 1st day of October, 1838. Lewis Smith, Charles Hill.” Upon the back of the note were the following indorse-ments, to wit: “Chartered banks are meant within. C. Hill;” a credit for the payment of §299 on the 13th May, 1839 ; and an assignment of the balance due upon the note, to the usee in the action, Edward Francis. There was a plea of tender in the notes of the chartered banks of the state, to which plea a demurrer was filed, upon the ground that the plea did not set out that the notes tendered were “at par.” The record shows that the defendant plead again under a judgment of respondeat ouster. This statement shows sufficiently that the demurrer was sustained. If a record show a fact without ambiguity, express and particular statements of it need not be required. The plea of the defendant below, filed by virtue of the judgment of respondeat ouster, was similar to the original plea to which a demurrer was in point of fact sustained, and to this plea a similar demurrer was filed, upon which no judgment seems to have been pronounced, but the parties went to trial upon the issues already made up. Under the circumstances, this court may presume that the parties waived this demurrer. 7 Yerg. 452. Upon the trial, the nominal plaintiff was permitted to testify, although objected to by the plaintiff’s counsel. His testimony told against himself, and if he did not object to testify, he was a competent witness. Duncan v. Watson Adm'r. 2 S. & M. 136. His testimony however, went to prove what was intended by the makers of the note in regard to the kind of funds jn which the note was payable, but as there seems to be no latent ambiguity in the note in this-respect, the evidence should have been ruled out. The note is payable “ in the notes of the chartered banks of Mississippi at par.” This can only mean that those notes were to be taken as at par, that is, without discount or premium. With this view of the meaning of the language of the note, the plea in the action to which the first demurrer was sustained was a good and sufficient plea, and it was unnecessary to allege more in the plea, than to set out a tender of chartered bank bills of this state.

Judgment reversed, the demurrer directed to be overruled, and further proceedings to be had.

Mr. Justice Clayton

dissented', on the ground that the demurrer should have been sustained. The plea not being a good defence, unless it averred a tender of bank notes, which were at par.  