In this case there are three principal points to be considered. 1st. What, by the law of this state, is the primary contract (of the rail road company ;) and what the contract made by indorsing it ? 2d. What, by the law of Massachusetts, is that primary contract; and what the contract made by indorsing it ? 3d. If, by any law binding this court, the primary contract be, or be so like, a negotiable note, as to require it to be, or make it capable of being, properly protested for non-payment, and the contract made by indorsing it, be such that the defendants were entitled to have such protest made, and due notice thereof given to them, was there such protest made, and such due notice thereof given, in this case?
As to the first point: the very strictest rule,.as to what constitutes a promissory note, is that it must be a written promise to pay, (to a person named in it,) absolutely and unconditionally, a certain sum of money at a certain specified time. In this case there is no claim that the contract is not a written promise to pay, (to a person named in it,) a certain sum of money at a certain specified time. But, (say the defendants,) there is a subsequent *80provision, that “ this note,” up to a time six months before the money was payable, might (at the election of the holder) be surrendered ; and the holder on such surrendry, should be entitled to receive its amount in stock of the company, instead of money. And it is claimed that this provision takes away the essential quality, that the money must be payable absolutely and unconditionally. To this, the answer is, that to the promise to pay the money, there is attached no condition and no uncertainty. Unless, (not later than six months before the money was to be paid,) the holder saw fit to surrender and cancel the promise ; if it remained in existence to the time w'hen it promised to pay any thing, it remained an absolute and unconditional promise to pay money only. From its inception there was no instant at which it could have been paid by any thing but money. And there never was any promise to pay any thing else than money.
With these views, I, of course, hold the primary contract to be a promissory note, negotiable; and the contract made by indorsing it, to be the usual one of an indorser of negotiable paper.
The materiality of the second point is found in the fact, that every contract, (sealed, unsealed or verbal,) is the agreement of the parties as they understand it; unless such understanding (as claimed or attempted to be proved) be against the plain meaning of the terms used in a written instrument. Contracts resting on this basis, are to be held to mean, what the law of the place where the contract was made held them to mean. For ascertaining the tenor—the interpretation—the nature of the contract, the lex loci contractus governs. For deciding what remedy is applicable to the contract, (so interpreted,) the lex fori governs. In this case, the primary contract was made, and was to be performed, in the state of Massachusetts. The indorsement was also made there. In the Massachusetts decisions I find nothing to change the position taken by the plaintiff, (Jones v. Fales, 4 Mass. Rep. 254,) “ that all cash notes are negotiable; and that all notes for merchandise may be sued by the promisee against the promisor ; and when indorsed, by the *81indorsee against the indorser.” By the laws of that state, then, an indorser of any thing purporting to be a note, (whether for the payment of money, or any thing else, and whether or not by our law negotiable,) makes thereby the same contract as does (with us) the indorser of a negotiable promissory note; that is, if the drawer do not pay at maturity, the indorser will, if the usual steps be taken which would legally charge an indorser of a negotiable promissory note.
The defendants claim that this Massachusetts law refers only to the remedy; as the case cited (and others) speaks of the manner of declaring (against such an indorser) as being the same as “ if the note were negotiable.” But were not the law as is above stated, no manner of declaring Could supply the legal basis, (the right of action) on which the declaration is founded.
The third question being thus reached, I cannot say that I deem it difficult of solution. The notice of protest, as a notice, has every element of sufficient certainty ; date, time, amount, drawer, payees, indorsement, are all so set forth as to leave hardly a possibility of misleading the indorsers. It is true, the defendants say, (and it is admitted,) that there had once been in existence four other notes, answering precisely to all these points of description; and that the whole five were precisely alike, except the numbering. And then it is claimed that this notice is imperfect, because it did not state the number of this note to distinguish it from each of the other four. But the number is no part of the note; nor does the fact that four, (or four hundred,) other notes were just like it, except the number, make the number any part of the note. These defendants were the payees of all the five. And if they wished to make such a distinction between the several notes, that a notice of non-payment would identify each one; it was their business to make such a distinctive and substantive variance between the notes, (making each differ from every other,) that its description would be a legal essential to a good notice, irrespective of the fact of the existence of the other four. Nor do I see any thing in the cases, cited for the defendants, to vary this opinion. They *82are all, (the case in Selden’s Notes, as well as the rest,) speaking only of noticés imperfect on their face, Then, and then only, are facts outside of the papers to be looked into, to see if there were really, and fairly, any ground for claiming to be actually misled by the notice given. The notice, in this case, is not imperfect on its face, and is sufficient.
[Saratoga General Term, January 6, 1857.There is a further reason why (if the question of the writing being a promissory note be considered a close and doubtful one) these defendants should be held on'it as a promissory note. It describes or recites itself to be one, (“ upon the surrender of this note;”) on its face, it purports to be negotiable, (being payable to them "or order:”) and by indorsing it in blank, they have passed it to the holder as a negotiable promissory note. They shall not, now, be permitted to deny that it is such. They must be held estopped from doing so.
The decision of the special term should be affirmed.
James, Rosekrans and Gould, Justices.]