While in Seattle last week I had the opportunity to reconnect with Jessica Pearlman, a corporate partner in the Seattle office of K&L Gates. (We were on an ABA panel together many moons ago.)
During our conversation, Jessica mentioned a recent case highlighting the perils of stating a number using words and digits. She later sent me a link to the case. It was Charles R. Tips Family Trust v. PB Commercial LLC, 459 S.W.3d 147 (Tex. App. 2015) (PDF here).
Here’s how the Texas Court of Appeals described the dispute:
The parties to this appeal entered into a residential loan agreement and guaranty for the principal amount of “ONE MILLION SEVEN THOUSAND AND NO/100 ($1,700,000.00) DOLLARS.” The loan documentation thus identified the amount of the loan in two different ways, with one number favoring the borrower—one million seven thousand—written out in words and a larger number favoring the bank—$1,700,000—set out in numerals. The bank alleged a default on the loan, and litigation ensued. The parties filed competing motions for summary judgment, and the trial court rendered a final summary judgment in favor of the bank.
The Court of Appeals reversed, holding that the words prevailed over the digits—the principal amount of the loan was $1,007,000.00. By itself, that should come as no surprise, as courts generally accept the principle of interpretation that words prevail over digits. Furthermore, the Uniform Commercial Code as enacted in Texas says that “[i]f an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers.”
But what gives one pause is that the court refused to consider parol evidence that the borrowers allegedly received $1.7 million from the lender. Why did it refuse? Because “a court may not consider extrinsic evidence about a contract’s meaning unless the contract is ambiguous.” That doesn’t make sense. A principle of interpretation offers a convenient way for a court to resolve ambiguity. What it doesn’t do is make it as if that ambiguity never existed. The court should have considered parol evidence. The bank in this dispute has reason to feel hard done by.
But my primary responsibility is avoiding fights rather than sorting through the entrails of confusing contract language. In that regard, this case has prompted me to stiffen my resolve. I have long recommended that you use words for whole numbers one through ten and digits for 11 onward. But in seminars I sometimes suggest that if you have the urge to use words and digits for the amount of a loan, that would be less annoying that using words and digits for all numbers in the contract. But this case serves as a reminder that the big number in a contract is as prone to words-and-digits inconsistency as any other number, and that the consequences of any such inconsistency can be particularly unhappy. So no longer will I indulge in the oh-okay-use-words-and-digits-once-if-you-must approach.
Also, let me take another crack at expressing what makes using words and digits to express a number so pernicious. Yes, you’re saying the same thing twice, so not only are you adding unnecessary words, you’re also introducing the possibility of inconsistency. But—and here’s something I haven’t expressed previously—saying the same thing twice also reduces the likelihood of spotting an error. If I say $1,000 and the number should be $2,000, there’s a good chance I’ll notice the mistake. The same applies if I say one thousand dollars ($1,000). But if I say one thousand dollars ($2,000), there’s a decent chance that I’ll focus on the more eye-catching digits and not notice that the words state an incorrect number.
So using words and digits to express a number not only introduces inconsistency, it also makes it more likely that you’ll fail to spot that inconsistency.
(Not enough words-and-digits excitement for you? See this 2014 post.)