D

The plaintiff proved that the payee became of age in August, 1849. The defendant objected to the introduction of the instrument because it was not negotiable, but the court admitted it in evidence and rendered judgment for the plaintiff.

Our statute makes promissory notes assignable by indorsement in writing, so as absolutely to vest the legal interest in the assignee. Was the instrument in question a promissory note? To constitute a promissory note, the money must be certainly payable, not dependent on any contingency, either as to event, or the fund out of which payment is to be made, or the parties by or to whom payment is to be made. If the terms of an instrument leave it uncertain whether the money will ever become payable, it cannot be considered as a promissory note. (Chitty on Bills, 134.) Thus, a promise in writing to pay a sum of money when a particular person shall be married is not a promissory note, because it is not certain that he will ever be married. (Pearson v. Ganet, 4 Mod. 242; Beardesley v. Baldwin, 2 Strange, 1151.) So of a promise to pay when a particular ship shall return from sea, for it is not certain that she will ever return. (Palmer v. Pratt, 2 Bing. 185; Coolidge v. Ruggles, 15 Mass. 387.) In all such cases, the promise is to pay on a contingency that may never happen. But if the event on which the money is to become payable must inevitably take place, it is a matter of no importance how long the payment may be suspended. A promise to pay a sum of money on the death of a particular individual is a good promissory note, for the event on which the payment is made to depend will certainly transpire. (Colehan v. Cooke, Willes, 393; s. c. 2 Strange, 1217.)

In this case, the payment was to be made when the payee should attain his majority- an event that might or might not take place. The contingency might never happen, and therefore the money was not certainly and at all events payable. The instrument lacked one of the essential ingredients of a promissory note, and consequently was not negotiable under the statute. The fact that the payee lived till he was twenty-one years of age makes no difference. It was not a promissory note when made, and it could not become such by matter ex post facto. The plaintiff has not the legal title to the instrument. If it presents a cause of action against the maker, the suit must be brought in the name of the payee. The case of Goss v. Nelson, (1 Burr, 226), is clearly distinguishable from the present. There, the note was made payable to an infant when he should arrive at age, and the day when that was to be was specified. The court held the instrument to be a good promissory note, but expressly on the ground that the money was at all events payable on the day named, whether the payee should live till that time, or die in the interim; and it was distinctly intimated, that the case would be very

different had the day not been stated in the note. It was regarded as an absolute promise to pay on the day specified, and no effect was given to the words that the payee would then become of age. The judgment must be reversed.

Judgment reversed.*

§ 23 SACKETT V. PALMER, 25 Barbour (N. Y.), 179.-1857. Action on a note payable "ninety days after the dissolution of the partnership between A. B. and C. D., and the settling of the books of said firm." JOHNSON, J. The instrument on which the action is brought is not a promissory note. It is payable ninety days after the happening of two events, one of which may never happen. The general rule is, that an instrument payable only in money, is not a promissory note, unless it is payable at all events, not depending on any contingency. Though if the event on which the instrument is to become payable must inevitably happen, it is no objection that it is uncertain when it will happen; nor is it of any importance how long the payment may be in suspense; it will still be regarded as a promissory note.] (Chit on Bills [8th Am. ed.], 155, 156.) It is not shown by the evidence how long the partnership was to continue by the agreement of the partners. It was certain, however, that there would at some time be a dissolution, by the death of one of the partners, if not otherwise. That event was sufficiently certain. But the settling of the books of the firm was an event which might never happen. It would not inevitably happen. It might, and probably would, after a dissolution, in due course of law. But that is not enough; if it might not happen the instrument is not a promissory note.

§ 23

AMERICAN NATIONAL BANK v. SPRAGUE.

14 RHODE ISLAND, 410. - 1884.

ACTION against indorsers on an instrument similar to the one in Riker v. Sprague Mfg. Co., (ante, p. 68), except that it was indorsed as follows:

A note reading Upon confirmation by the Congress of the United States of the certain land grant known as I promise to pay," etc., held nonnegotiable since it was not certainly and at all events payable; it not being certain that the grant would ever be confirmed by Congress, or through its instrumentalities. "It is no answer .. to show that the grant in question has, as a matter of fact, been confirmed by the court of private land claims. The question is, What were the conditions when the contract was made? Negotiability is to be judged by the front sight, not by the back sight. The moral certainty must be present at the time of its execution and not be a matter of relation accruing by reason of subsequent events. If it be

"Issued as collateral to A. &. W. Sprague Mfg. Co.'s draft accepted by Hoyt, Spragues & Co., No. 6806."

TILLINGHAST, J. * * * It will at once be seen that these notes differ very materially from those declared on in the former case, and also that under the rule therein adopted they are clearly not negotiable. They were issued as collateral to certain drafts therein specifically designated, and obviously are not payable at all events; it being evident that the payment of the drafts would at once discharge both the makers and indorsers of the notes, and render said notes null and void. So also a partial payment on the drafts would at once reduce the amount collectible on the notes pro tanto.

The undertaking of the defendants, therefore, was at most a contingent one, and the sum which might become due at the expiration of the notes was uncertain. * * *

Without considering the other points raised by the petition, we must, therefore, grant a new trial.

Petition granted."

IV. Payable to order or to bearer.

1. MUST BE PAYABLE TO ORDER OR BEARER TO BE NEGOTIABLE."

$ 20

WETTLAUFER v. BAXTER.

[Reported herein at p. 145.]

not a bill or note ab initio, no subsequent event can make it so." POPE, J., in Joseph v. Catron, 13 N. M. 202, 223. See this case reported with note in 1 L. N. S. 1120.

See also to the same effect Eldred v. Malloy, 2 Colo. 320. - C.

5 In Citizens' Nat. Bank v. Piollet, 126 Pa. St. 194, a note containing a memorandum that "This note is given for advancements and it is the understanding it will not be renewed at maturity was held non-negotiable. "The statement that it is given for advancements does not affect the certainty of the note, and it could easily be regarded as a mere memorandum not changing the contract and therefore not material. But the remainder of the writing is an agreement that the note will be renewed at maturity. As the bank is the holder and discounted the note when it was given, it must be con

sidered as having agreed to renew the note at its maturity. This being so, the obligation of the note is not an absolute, unconditional contract to pay the money at maturity. It is a qualified obligation to pay, with a condition that, instead of paying, the holder may give another note in its place which the bank would be bound to accept instead of money. This being so, the case comes within the rule that commercial paper, to be negotiable, must be certain, unconditional, and not contingent." GREEN, J., at p. 197. — C.

• It is to be observed that the Neg. Inst. Law applies only to instruments containing words of negotiability. An instrument not containing words of negotiability may be a bill or note, but it is not covered by this Act. The English Bills of Exchange Act makes negotiable any bill or note which does not contain words prohibiting transfer; but this changes the law. Chalmers, Bills of Exchange Act (5th ed.), p. 25.-H.

2. PAYABLE TO THE ORDER OF A SPECIFIED PERSON.

(a) Payee must be certain.

$27 GORDON v. LANSING STATE SAVINGS BANK. 133 MICHIGAN, 143. 1903.

JUDGMENT for plaintiff, and defendant brings error.

MOORE, J.-This case was tried by the Circuit judge without a jury. At the request of the defendant, he made a finding of facts, which is as follows:

"Monday morning, December 9, 1901, at about nine o'clock, there was presented at the bank of defendant at the city of Lansing for payment the following check, made upon the printed form of check supplied by defendant to its patrons, and signed by plaintiff, viz.:

"LANSING STATE SAVINGS BANK OF LANSING.
nine hundred and seventy

"Pay to the order of dollars ($970.00).

"JNO. R. GORDON.'

"The check was indorsed by Charles P. Downey, and was presented by an employee of Mr. Downey, and cash was paid at the time of presentation. The plaintiff had been a depositor at defendant's bank at periods for three or four years, and at the opening of the bank on the morning of December 9, 1901, his balance or credit upon the books of the bank was $3.40, but during the day $2,997.50 was added to plaintiff's credit. The day defendant cashed the check plaintiff was at the bank, and was informed that the check for $970 had been cashed by payment to Mr. Downey, and he then notified defendant he would not accept the check as a voucher for the money paid. December 14, 1901, plaintiff prepared and presented to defendant his check, payable to himself, for $970, being the amount he claimed to then have on deposit in the bank. Payment on this check was refused by defendant upon the ground that plaintiff had no funds in the bank."

The Circuit judge rendered a judgment in favor of the plaintiff for $970 and interest. The case is brought here by writ of error. Two questions are discussed by counsel: First, the effect of not dating the check; second, has the check a payee? We do not deem it necessary to discuss the first question. As to the second question, it will be noticed the drawer of the check did not name a payee therein, nor did he leave a blank space where the name of a payee might be inserted, nor did he name an impersonal payee. In the case of McIntosh v. Lytle, 26 Minn. 336,* the court used the following language: "A

In this case the instrument sued on read as follows: "$200.

ST. PAUL, MINN., Jan. 22, 1879. Dawson & Co., Bankers: Pay to the order of, on sight, two hundred dollars, in current funds.

E. LYTLE."- C.

check must name or indicate a payee. Checks drawn payable to an impersonal payee, as to Bills Payable' or order, or to a number or order, are held to be payable to bearer, on the ground that the use of the words or order indicate an intention that the paper shall be negotiable; and the mention of an impersonal payee, rendering an indorsement by the payee impossible, indicates an intention that it shall be negotiable without indorsement - that is, that it shall be payable to bearer. So, when a bill or note or check is made payable to a blank or order, and actually delivered to take effect as commercial paper, the person to whom delivered may insert his name in the blank space as payee, and a bona fide holder may then recover on it. These cases differ essentially from the one at bar. In the latter case the person to whom delivered is presumed, in favor of a bona fide holder, to have had authority to insert a name as payee. In the former case the instrument is, when it passes from the hands of the maker, complete, in just the form the parties intend. But in this case there is neither a blank space for the name of the payee, indicating authority to insert the payee's name, nor is the instrument made payable to an impersonal payee, indicating a fully completed instrument. It is claimed that the words on sight' are such impersonal payee. They were inserted, however, for another purpose to fix the time of payment, and not to indicate the payee. It is clearly the case of an inadvertent failure to complete the instrument intended by the parties. The drawer undoubtedly meant to draw a check, but, having left out the payee's name, without inserting in lieu thereof words indicating the bearer as a payee, it is as fatally defective as it would be if the drawee's name were omitted."

See, also, Rush et al. v. Haggard, 68 Tex. 674; Prewitt v. Chapman, 6 Ala. 86; Brown v. Gilman et al., 13 Mass. 160; Rich et al. v. Starbuck, 51 Ind. 87; Norton, Bills & Notes (3d ed.) p. 59, and notes; Daniels, Neg. Inst. (4th ed.) § 102.

The case differs from the one at bar in some respects, but the important part of the decision is that a payee is necessary to make a complete instrument, and, even though the maker of the check may have intended to name a payee, if he has not in fact done so the check is incomplete. In the case at bar the failure to name a payee was not an oversight, if we may judge from what Mr. Gordon did, as will appear more in detail later.

Our attention has been called to Crutchly v. Mann, 5 Taunton R. 529. In this case the bill of exchange was made payable to the order of ..... .... The court found that under the facts shown the conclusion was irresistible that the name was filled in with the consent of the drawer. The same case was previously reported in 2 Maule & Selw. 90, where, as the case then stood, it appeared the bill of exchange had been sent out, the defendant leaving a blank for the name of the