#### Daniel B. Badger *versus*William Jones.

In an action by the plaintiff* as indorsee of certain promissory notes, a writing was produced in evidence, given by the plaintiff to"his mother, in which, after acknowledging that he has received of her the notes in question, signed by the defendant and indorsed by the promisee, he says, “ said notes I am to collect, being to the amount of $ 1412*86, and after said notes are paid by the promisor to me, I will account to her for the same, or deliver the notes to her if 1 cannot recover them of the promisor.” It was *held,*that by the legal construction of this writ ing it did not necessarily import that the plaintiff received the notes merely as agent to collect them in the name of his mother, and not as indorsee, and that it might be explained by parol evidence $ for as it was collateral to the contracts upon which the action was brought, it did not fall within the rule, that parol evidence is not admissible in aid of the construction of a written instrument.

Assumpsit on four promissory notes, by the plaintiff as indorsee, against the promisor. Trial before *Shaw*C. J.

It appeared at the trial, that the notes were payable to David J. Badger, the brother of the plaintiff. The defendant is the uncle of the plaintiff and of David J. Badger, being the brother of their mother, who has been a widow several years. The defence was, that the notes had not been negotiated to the plaintiff, so as to warrant him in bringing an action upon them as indorsee. It was found by the jury, that David J. *377Badger delivered them to his mother, with his name indorsed thereon, with intent to vest in her the legal interest in them. It was conceded, on both sides, that the notes were delivered by the mother to the plaintiff, with the blank indorsement of the promisee thereon ; but whether'she so delivered them with an intent to negotiate them and vest the legal interest in the plaintiff, supposing herself to be the indorsee, or whether she merely delivered them to him as her agent, -for the special purpose of collecting the interest due on them, was the principal question. There was conflicting evidence on the point; among which was a receipt signed by the plaintiff, as follows : — “Boston, October 24, 1830. Received of Mrs. Ann Badger notes signed by William Jones and indorsed by David J. Badger ; said notes I am to collect, being to the amount of $ 1412-86, and after said notes are paid by said Jones to me, I will account to her for the same, or deliver the notes to her if I cannot recover them of the promisor.” The chief justice instructed the jury, that if the mother was the indorsee and owner of the notes, and if she delivered them to the plaintiff indorsed in blank, with intent to pass the interest, then he became the indorsee, and had a right to fill up the blank so as to make the notes payable to himself; that as between the parties, the defendant not being a party to it, the receipt, though strong evidence upon the question of intent, was not the only admissible evidence. The defendant’s counsel requested the chief justice to instruct the jury, that by the legal construction of the writing itself, it appeared that the plaintiff received the notes from the mother as her agent, to collect in her name, and not as indorsee, with authority to fill up the indorsement and sue in his own name; but the chief justice instructed them, that as the plaintiff was the son of the holder, Mrs. Badger, and the defendant was her brother, and that as the plaintiff was not an attorney at law, broker or agent usually employed to collect money, the receipt, in its legal effect and construction, did not necessarily import that the plaintiff received the notes as an agent and not as an indorsee, and did not preclude him from maintaining an action in his own name as indorsee.

The whole evidence was left to the jury upon such question *378of intent, and a verdict was returned for the plaintiff. The defendant moved to set aside the verdict on account of an alleged misdirection to the jury, upon the construction of the receipt.

*March 22 d.*

*March 30th.*

Dunlap, for the defendant,

cited 3 Stark. Ev. 1044 , *Stackpole*v. Arnold, 11 Mass. R. 32.

*S. D. Parker*and *Dame*for the plaintiff.

Wilde J.

delivered the opinion of the Court. We think it very clear that the instructions to the jury in this case were correct, and that the verdict is well sustained by the evidence.

It was proved that the notes sued were delivered by the promisee to his mother, indorsed in blank, and were after-wards delivered by her, so indorsed, to the plaintiff. This was good *prima, facie*evidence to support the present action. But the defendant relies on a receipt given for the notes by the plaintiff to his mother, and the Court was requested by the defendant’s counsel to instruct the jury, that by the legal construction of the receipt the plaintiff must be considered as having received the notes as agent of the mother, to collect in her name, and not as indorsee. The chief justice declined thus to instruct the jury, and, as we think, rightfully. The receipt was collateral to the contracts sued, and to which the defendant was not a party ; the rule, therefore, as to the construction of written contracts, and the exclusion of parol evidence in aid of the construction and to show the true meaning, of the parties, does not apply ; and indeed the receipt, independently of other circumstances and evidence, does not import that they were received to collect, and in her name. The case therefore was properly left to the jury upon the whole evidence.1

*Judgment on the verdict.*

1

 See *Champlin v. Butler, 18*Johns. R. 169; *Townshend*v. *Stangroom,*6 Vesey, 337.