prevent the court, in construing their language, from falling into mistakes and even absurdities." And, quoting Mr. Greenleaf, he adds: * "The writing, it is true, may be read by the light of surrounding circumstances, in order more perfectly to understand the intent and meaning of the parties. * The duty of the court in such cases is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used."" And from Mr. Taylor: 666 Whatever be the nature of the document under review, the object is to discover the intention of the writer, as evidenced by the words he has used; and, in order to do this, the judge must put himself in the writer's place. and then see how the terms of the instrument affect the property or subject-matter. With this view, extrinsic evidence must be admissible of all the circumstances surrounding the author of the instrument.'” This doctrine is applicable to wills. Tuxbury v. French, 41 Mich. 10, and cases cited upon page 12 of the opinion. The facts alleged to have been concurrent in this case are that these parties made the agreement alleged; that, acting upon it, the land and mortgage were conveyed, and a will immediately made, giving the wife $40,000, in conformity to the contract; that the estate at that time comprised personal property mainly, there being no real estate of consequence in which the wife might become entitled to dower. The bill asserts these facts, and possibly others, as a basis for the testator's intention which it alleges. We are not prepared to say that the language of this will must be so strictly construed as to justify the holding that a $40,000 bequest is made in lieu of dower technically understood, when there was very little, if any, property subject to dower. We think it is not clear from the reading of this will that the testator intended to relieve the defendant Harriet Dakin from her undertaking, and to permit her to claim property that she agreed to waive in consideration of his provision for her. If the bill should be sustained by the evidence, we should feel constrained to give the will the construction contended for by complainant. When heard upon the evidence, the question becomes one of fact. The decree sustaining the demurrers must be reversed, the demurrers overruled, with costs of both courts against Harriet Dakin, upon payment of which within a reasonable time, to be fixed by the circuit court for the county of Ingham, in chancery, the defendants should be permitted to answer. The other Justices concurred. WILLIAM H. CRUMP AND BENJAMIN C. HAYMAN V. CHARLES J. BERDAN. Bills and notes-Negotiability-Certainty of amount—Instructions to jury. 1. The negotiable character of a promissory note bearing 7 per cent. interest is not destroyed by adding an agreement to pay 10 per cent. interest from date if the note is not paid at maturity.' 'For cases holding that certain instruments are promissory notes, see: 1. Beardslee v. Horton, 3 Mich. 560, holding that the negotiable character of a promissory note is not destroyed by a recitation that it is given for a fanning mill, which is warranted to do good work, and that the maker may return the mill within a given time, and exchange it for another mill, if it fails to answer the warranty. 2. Littlefield v. Hodge, 6 Mich. 326, holding that a promissory note does not lose its negotiable character because it purports to be according to the conditions of a mortgage, where there is no repugnancy between the conditions of the two instruments. 3. Smith v. Kendall, 9 Mich. 241, holding that an agreement to 2. It is reversible error for the trial judge not only to fail to correct an erroneous statement of counsel as to the law, made during the charge, but, by a colloquy with counsel, to give the jury to understand that his statement is correct. pay a specified sum of money to the payee, or order, at a given time, with current exchange on New York," is a promissory note. 4. Knight v. Jones, 21 Mich. 161, holding that an agreement to pay Mary Knight, or heirs, the sum making $450 January 1, 1868," is sufficiently definite as to the amount to be paid and the payee to entitle it to be admitted in evidence as a promissory note. 5. Preston v. Whitney, 23 Mich. 260, holding that the addition of a memorandum to a promissory note, that it is to be valid as part payment for a piano purchased of the payee, does not change the character of the instrument. 6. Black v. Ward, 27 Mich. 191, holding that a promissory note made and indorsed in Michigan, and payable in Canada "in Canada currency," is a note payable in Canada precisely as if it had been made there without qualification, or, in other words, that the note is payable in the lawful money of Canada. 7. Wright v. Irwin, 33 Mich. 32, holding that an agreement to pay a designated railroad company, or bearer, $1,500, in payments of 20 per cent. per month from a given date, towards right of way and grading a section of the payee's railroad, is a promissory note. For cases holding that certain instruments are not promissory notes, see: 1. Fralick v. Norton, 2 Mich. 130, holding that the addition to a promissory note of an agreement by the payee, that the payment of a sum less than the principal 10 days before its maturity, shall cancel the note, destroys its negotiability. 2. Fox v. Shipman, 19 Mich. 218, holding that a warrant drawn by school officers upon the township treasurer in favor of the assessor of the district, and accepted by the treasurer is not negotiable. 3. Brooks v. Hargreaves, 21 Mich. 254, holding that the addition to a promissory note of a statement that it is to be paid whenever any dividends shall be declared on such stock as the maker has theretofore been holding in a designated corporation destroys the negotiability of the note. 4. Bannister v. Rouse, 44 Mich. 428, holding that an instrument in the form of a promissory note, which provides for the retention by the payee of the title to a piano, for the payment of a portion of the purchase price of which the note is given, with the option in case of non-payment to take possession of the piano or collect the note, is not a promissory note. 5. Lamb v. Story, 45 Mich. 488, and Story v. Lamb, 52 Id. 525, holding that the addition to a promissory note, due in two years, of a provision that if it is paid in one year no interest shall be paid, destroys the negotiable character of the instrument. 6. Smith v. Van Blarcom, 45 Mich. 371, holding that the time of payment of a promissory note is rendered uncertain, and its negotiability destroyed, by attaching thereto an agreement that the payee or his assigns may extend the time of payment indefinitely, as he or they may see fit. 7. Goodenow v. Curtis, 33 Mich. 505, holding that an agreement to pay $2,000 to Thomas Curtis, or bearer, according to a certain Error to Manistee. (Judkins, J.) June 21, 1893. Decided October 27, Submitted on briefs 1893. Assumpsit. Plaintiffs bring error. Reversed. The facts are stated in the opinion. P. W. Niskern, for appellants. Smurthwaite & Higgins, for defendant. mortgage of even date, payable to said Curtis, is not a promissory note, it appearing that the mortgage is not payable absolutely, but only on certain contingencies, and that the time of payment is subject to be fixed or changed by the performance of certain acts by the payee. 8. Humphrey v. Beckwith, 48 Mich. 151, holding that an instrument by which the promisor aggrees to pay a specified sum of money on or before four years from date, with interest at 10 per cent., not to be paid annually unless he can make it convenient. and which provides that other security shall be taken in exchange for the agreement when the promisor can realize in proper shape from a specified source, is not negotiable. 9. Rawson v. Davidson, 49 Mich. 607, holding that the addition of a seal to the signature of the maker of a promissory note destroys the negotiability of the note, as it extends the period of the statute of limitations. 10. Bank v. Purdy, 56 Mich. 6, holding that by inserting in a promissory note an agreement for the payment of an increased rate of interest if the principal is not paid at maturity, and for the payment of exchange, and all expenses, including attorney's fee, incurred in collecting the note, the negotiability of the note is destroyed. 11. Bank v. Carson, 60 Mich. 432, holding that the addition of a condition that the sale or removal of the property for which the note is given shall cause the debt at once to mature destroys its negotiable character. 12. Chandler v. Carey, 64 Mich. 237, holding that an agreement to pay a fixed sum of money to the payee, or bearer, on or before a given date, upon the completion of certain specified work agreed to be performed for the maker by the payee, is not a promissory note. 13. Altman v. Rittershofer, 68 Mich. 287, and Altman v. Fowler, 70 Id. 57, holding that the addition of an agreement to pay "attorney's fees," without stating any amount, renders the note non-negotiable; and Wright v. Traver, 73 Mich. 493, where the same rule is applied to an agreement to pay 10 per cent. attorney's fees, and the provision is held void,-citing Bullock v. Taylor, 39 Mich. 137, as to the last proposition. 14. Bank v. Wheeler, 75 Mich. 546, holding that an agreement to pay $150 on or before a certain date, with 7 per cent. interest from date, and 8 per cent. interest after maturity, and 5 per cent. attorney's fees, is not a promissory note. 15. Brewing Co. v. McKittrick, 86 Mich. 191, holding that an instrument in form a promissory note, but which authorizes a confession of judgment for the amount due thereon, with costs, and the usual attorney's fees, is not a promissory note. MONTGOMERY, J. Plaintiffs brought suit on two promissory notes, amounting at the time of the trial to $112.50. The plaintiffs introduced the notes, and rested their case. The defendant then offered testimony tending to show that the notes were given without consideration, and were obtained by a fraud perpetrated by the payee, one S. S. Saunders. The plaintiffs, in rebuttal, gave testimony tending to show that the notes were purchased by them for value, before maturity, in good faith, and without any knowledge on their part of any fraud in the procuring of the notes, or of any failure of consideration. The court, in a very fair and full charge, submitted to the jury the questions of whether there was fraud, and whether the plaintiffs purchased the notes in good faith and for value before maturity. Some criticism is made of the charge upon these points, but it follows so closely the lines of repeated adjudications of this Court that it is not desirable to demonstrate its correctness by extended quotations. At the conclusion of the charge, however, the following occurred: "And before the plaintiffs can be defeated at all, gentlemen, you must find fraud,-such fraud practiced by this man Saunders as would have defeated the notes in his hands; secondly, that these plaintiffs had notice of it or knowledge of it before they purchased the notes. "Mr. Withey, Counsel for Defendant: Our theory is that they did not buy them; that they received them as collateral. The Court: good faith? Suppose they were taken as collateral, in "Mr. Withey: They were held only as security, and they belonged to this man Saunders all the while. They could not recover them. The Court: Now, gentlemen, that is all there is to it. On the law it is a very plain case, and on the facts it presents a question for your solution." The court not only failed to correct the statement of law by Mr. Withey, but by putting the question as he did in connection with his charge, and permitting the answer |