majority">LyoN, J.

The question to be determined is whether the-finding of the court that nothing was due the plaintiff when the action was commenced, on either of the notes in suit, is sustained by the evidence.

1. ’ As to the note of November 22, 1815. It is conceded that the interest on this note to January 29, 1878, was paid. On November 22, 1878, there became due thereon for interest $19.26, and if none was paid there was due for interest' Novémber 22, 1879, $42.76. No more became due before the commencement of this action, July 23, 1880. The note of May 6, 1879, included $41 of interest on one or both of the other notes. The plaintiff claims and testifies that it was expressly understood and agreed by the parties that the latter note was not received by him as payment of interest, and was not to be indorsed on the other notes until paid. The defendant Henry B. Coffee testified that the note “ was received as a payment on the first note, and he (plaintiff) agreed to indorse it on the note.” He testified to no other word or act of the plaintiff upon which he predicates his statement that, plaintiff received the note as payment.. That statement is. *265rather an inference drawn by the witness without facts to support it, than the statement of a fact. Although there is an apparent conflict between the testimony of plaintiff and defendant Henry B. Oaffee on the subject, we think their testimony is reconcilable. Caffee says that plaintiff agreed to make' the indorsement. Plaintiff says he did so agree., but not until he received the money on the small note. Caffee does not expressly negative this testimony as to when the indorsement should be made. Mr. Monahan, who drew the note and was present when’ the negotiations took place between the parties which resulted in the giving of it, was unable to recollect when the indorsement should be made — • whether before or after payment of the note.

It is our duty to reconcile this apparently conflicting testimony, if it can reasonably be done, and we think it is reasonably reconcilable as above suggested. In this view of the testimony, under the uniform decisions of this courts cited in the brief of counsel for plaintiff, the giving of the note for $51 was not a payment of any portion of the interest on the other notes, and hence there was due on the note of -November 22, 1815, when the action was commenced-, $42.76, less $17.35,— the price of the hogs,— which we are of the opinion should be so applied. The plaintiff was, therefore, entitled to judgment for some amount, and it was error to dismiss the complaint. This is so clear from the testimony that the finding of the learned circuit judge to the contrary cannot be upheld.

2. The conclusion above stated concerning the first note necessarily leads to a reversal of the judgment. But in order to direct the proper judgment to be entered, it is necessary to determine how much is due upon the note of January 29, 1878. This brings us to the question whether the Words “after maturity” were or were-not properly retained therein, which is the only matter in controversy. This note was drawn by writing, in a printed blank, the date, when *266due, name of payee, amount, and place of payment. The words “after maturity” are printed, and not erased. We have no doubt they should have been erased to effectuate the intention of the parties. The subsequent clause, “ a failure to pay the interest as herein agreed makes this noté wholly due and payable, and the holder may then proceed to collect principal and interest,” is utterly incompatible with the idea that the note should not draw interest until after maturity. The note, considered alone, is ambiguous. But this ambiguity is fully explained, and the intention of the'parties made manifest, by a condition in the mortgage given to secure it. That condition is that the defendants pay the plaintiff $115.25 “five years from date, with ten per cent, per annum, annually, according to the condition of one certain promissory note bearing even date herewith,” etc. Here the defendants describe the note of January 29, 1878, and stated its terms as they understand and intended them to be. It is too clear for argument that the words “ with ten per cent, per annum, annually,” means with interest at ten per cent, per annum, payable annually. They admit no other construction, and can have no other signification. It is equally clear that the note described in the mortgage draws interest from its date. Hence, upon the note and mortgage alone, we should not hesitate to hold that the words “ after maturity ” have no proper place in the note, and should be erased or disregarded. The parol testimony fully sustains this view. The defendant Henry B. Coffee merely denies that there was any conversation about interest between the parties when the note was made, while the other testimony and all of the reasonable probabilities of the case convince us that the note which the parties intended is correctly described in the mortgage. The giving of the note and mortgage constitute one transaction, and these instruments must be considered together for the purposes of the construction of either. So considering *267them, in the light of the parol testimony, we must hold that the mortgage correctly describes the note which the parties intended, and thus explains the ambiguity in the note. Under that explanation the words “after maturity” in the note must be rejected, and interest thereon computed from its date. Both notes having become due, the plaintiff must have judgment for the whole amount of. both — principal and interest — remaining unpaid.

By the Court.— Judgment reversed, and .cause remanded with directions to the circuit court to enter judgment for the plaintiff as indicated in this opinion.

Citation profile

How this case has been treated — in progress