
    Daniel Heywood versus Horatio Perrin.
    At the bottom of a promissory note on demand, was written the memorandum, “ one half payable in 12 months, the balance in 24 months.” Held, that it was competent to either party to the note to prove by parol evidence the time when, the person by whom, and the circumstances under which the memorandum was affixed to the note.
    Such memorandum being proved to have been affixed to the note before it was delivered to the promisee, and so constituting a part of the contract, it was held, that the contract was to be construed according to the written terms ; and that parol evidence, to show that the stipulation for a term of credit was provisional, namely, if the promisor should remain solvent, was inadmissible.
    It was also held, that there was not such a repugnance between the memorandum and the words “on demand,” as would invalidate the contract, but that the memorandum limited the generality of those words.
    Assumpsit for goods sold and delivered ; also upon a promissory note, dated February 2d, 1829, made by the defendant, for $ 792-10, payable to the plaintiff or order, on demand, with interest.
    By the report of the late chief justice Parker it appeared, that after the signature of the defendant, and the attestation of a subscribing witness, the following memorandum was written at the bottom of the note by the subscribing witness : — “ One half to be paid in 12 months, the balance in 24 months.” The subscribing witness and a clerk in the plaintiff’s store were offered as witnesses by the plaintiff, and objected to by the defendant, but the objection was overruled; and they testified, that after the note was written and signed, the defendant objected to it on account of its being payable on demand, saying that he was to have a credit as stated in the memorandum ; to which the plaintiff replied, “ I have no objection to your having the credit, but I will take no other note but one payable on demand. You shall have the credit if you remain good, but I will not tie up my hands so that I cannot secure myself in case you should fail.” After this conversation the memorandum was written as before stated. The note was given for goods, which were purchased on the above credit. Before the commencement of this suit, which was after the first term of credit had expired, the defendant assigned all his property to a credi- - tor for the payment of a debt, the defendant being then insolvent.
    
      A default was ordered, with an agreement that if the above facts were not admissible in evidence to explain the memorandum, or, if being admitted, they could not lawfully control its operation, judgment should be rendered for the first instalment only, with interest; otherwise for the full amount of the note.
    
      Oct. 12th-
    
    Burnside, for the plaintiff.
    The memorandum is not a part of the note, and it is only by the introduction of parol evidence that it has any connexion with the note. It was merely a memorandum for the plaintiff’s own use. At most, it was but a collateral agreement, for a breach of which the defendant’s remedy is by action. Dow v. Tuttle, 4 Mass. R. 414.
    But admitting the memorandum to be a part of the contract, the note, independent of parol evidence, is payable on demand, in 12 and 24 months ; which is a contradiction in terms ; and if the note is consequently invalid, the plaintiff is entitled to recover on the count for goods sold and delivered.
    The parol evidence was however admissible, and the true construction of the note is, that it was payable on demand, but that the plaintiff would not enforce the payment in less than 12 and 24 months, unless the responsibility of the defendant should in the mean time be impaired. Barker v. Prentiss, 6 Mass. R. 430 ; Hunt v. Adams, ibid. 519, and 7 Mass. R. 518; Sargent v. Southgate, 5 Pick. 312; Leland v. Stone, 10 Mass. R. 461.
    
      Newton and W. Lincoln, contrà,
    
    cited Jones v. Fales, 4 Mass. R. 245 ; Springfield Bank v. Merrick, 14 Mass. R. 322 ; Hunt v. Adams, 7 Mass. R. 518; Richards v. Killam, 10 Mass. R. 239 ; Stackpole v. Arnold, 11 Mass. R. 27 ; Lewis v. Thacher, 15 Mass. R. 431 ; Dwight v. Pomeroy, 17 Mass. R. 303, 329 ; Parkhurst V. Van Cortland, 1 Johns. Ch. R. 282; Rex v. Laindon, 8 T. R. 379 ; Davenport v. Mason, 15 Mass. R. 90.
    
      My 183]°.
   Per Curiam.

The first question which arises upon this report is, as to the admissibility of the parol evidence.

As it appears by the face of the note itself, that the memorandum, “ One half payable in 12 months, the balance in 24. months,” was not embraced in the body of the note, but was written at the bottom, after the attestation of the subscribing witness, it was competent for either pa ty to prove by parol evidence, the time when, the person by whom, and the circumstances under which the memorandum was affixed to the note. These words might have been added, after the delivery of the note, or by a stranger, or under such circumstances as not to constitute a part of the contract between the parties. Such evidence had no tendency to vary, control, or in any way affect the meaning of the contract. But we are clearly of opinion that the evidence of the declarations of the promisee, as to his intentions in taking the contract in this form, and as to his understanding of the meaning and construction of its terms, can have no effect in giving a construction to the instrument. Having ascertained what the written words were, in which the parties expressed their contract at the time, the Court are bound to construe it according to those terms, whether clearly or obscurely expressed, and can derive no aid from the conversation and declarations of the parties at the time.

From the evidence thus admitted, it appears that after the note was written and signed, but before its delivery, the defendant objected to it as a note payable on demand ; that thereupon the memoradum thus recited was written, and then it was delivered as the contract of the defendant. We are then to consider the 'memorandum as a part of the contract, in the same manner as if it had been included in the body of the note, or placed over the defendant’s signature, and it is to be construed accordingly.

In construing a contract, every word and clause shall be taken into consideration, and have an effect given to it if possible. Here we think the memorandum was intended to limit and control the generality of the words “on demand.” If these words stood alone, the demand might be made immediately or at any future time. But the memorandum limits this right and restrains the promisee from making such demand, as to one half, to. 12 months, and the other to 24 months. A promise to pay on demand, after a certain number of days or months, is not an unusual form of promissory note ; it is an intelligible contract, and attended with no fatal repugnancy ; and we think, in its legal effect, the note under consideration is similar.

It has been contended, that the stipulation for a term ot credit was provisional, namely, if the defendant should remain solvent. If this argument is founded upon the terms of the written contract, it would be a forced construction, not warranted by its terms. If the parol evidence is relied upon, we are of opinion, for the reasons already given, that the parol evidence is not admissible, to vary and control the plain import of the written contract.

It has been further contended, that the memorandum, if it is to have any effect, is to be taken as a distinct collateral contract, not to sue or demand payment within the times specified ; upon the breach of which, if the defendant has sustained damage, he may have an action, but that it cannot be relied upon to control the original contract, within the principle of Dow v. Tuttle, 4 Mass. R. 414.

We think it is impossible to bring this case within that principle. Here the clause in question was part of the note, written and delivered at the same time. Besides, the terms of the memorandum are conclusive. The words are, “payable,” &c. that is, the money stipulated to be paid, is to be paid in a particular specified term of time. They constitute a part of the promise, and qualify it. It is impossible to regard them as a collateral and independent contract.

One instalment only being due by the terms of the note, when the action was commenced, judgment must be rendered for only one half of the amount of the note, with interest. 
      
       See Eaton v. Emerson, 14 Maine R. (2 Shepley,) 335 ; Hanson v. Stetson, 5 Pick. 506; Spring v. Lovett, 11 Pick. 420.
     
      
       See Wheelock v. Freeman, 13 Pick. 167 to 169; Homer v. Wallis, 11 Mass. R. 309; Odiorne v. Sargent, 6 N. Hamp, R. 401; Ulmer v. Reed, 2 Fairfield, 293; Central Bank v. Willard, 17 Pick. 150; Hobart v. Dodge, 1 Fairfield, 156.
     