STORM v. STIRLING.

(Court of Queen's Bench, 1854.

Declaration upon a promissory note.

3 Ellis & B. 832.)

On the trial, before Crompton, J., at the Middlesex sittings in Michaelmas term, 1853, a special verdict was found, of which the parts now material were as follows:

As to the first issue: That the defendant, at a certain place, etc. (as in the declaration), made and signed, and delivered to the plaintiff, a document in the words and figures following, that is to say:

"C. 20,000.

Calcutta, 10th March, 1845.

"Nine months after date, I promise to pay to the secretary for the time being of the Indian Laudable & Mutual Assurance Society, or order, company's rupees, twenty thousand, with interest at the rate of six per cent. per annum. And I hereby deposit in his hands twentytwo Union Bank shares, as particularized at foot, by way of pledge or security for the due payment of the said sum of company's rupees, twenty thousand, as aforesaid; and, in default thereof, hereby authorize the said secretary for the time being, forthwith, either by private or public sale, absolutely to sell or dispose of the said twenty-two Union Bank shares, so deposited with him; and out of the proceeds. of sale to reimburse himself the said loan of company's rupees, twenty thousand, and interest thereon, as aforesaid, he rendering to me any surplus which may be forthcoming from such sale. And I hereby promise and undertake to make good whatever, if anything, may be wanting over and above the proceeds of such sale, to make up the full

suit could be maintained thereon by both payees, but not by one. Willoughby v. Willoughby, 5 N. H. 244 (1830); Spaulding v. Evans, Fed. Cas. No. 13,216 (1840). This view was really approved in Walrad v. Petrie, 4 Wend. (N. Y.) 575 (1830), but the court felt bound by the cases referred to above.

"This court very distinctly adopted the New Hampshire construction in the early case of Quinby v. Merritt, 11 Humph. 439 (1850). In that case a certain written obligation was indorsed to the order of C. W. or W. L. Nance. C. W. Nance alone undertook to transfer it. This court said that, while such a paper was not valid as a promissory note, 'yet it is evidence of a contract for the payment of money, and according to the cases referred to, and especially that in 5 N. H., is evidence of a contract with both the payees jointly; and they have, therefore, a joint interest in the fund secured by such note.' The court accordingly held that a suit could not be maintained by the indorsee C. W. Nance; that it was necessary for C. W. and W. L. Nance both to indorse the paper to effect a valid transfer.

"See, also, Estate of William Parry, 188 Pa. 33, 41 Atl. 448, 49 L. R. A. 444, 68 Am. St. Rep. 847 (1898); Farrelly v. Emigrånt Savings Bank, 92 App. Div. 529, 87 N. Y. Supp. 54 (1904).

"While subsection 5, § 8, c. 94, Acts 1899 (Negotiable Instruments Act), provides that a promissory note may now be made payable to 'one or some of several payees,' the statute does not undertake to define the interests of such payees in the obligation, and we do not think it invariably precludes us from construing such an obligation to be one in which the payees have a joint interest.

"In the particular case before us such a construction is clearly correct."

amount of the said loan of company's rupees, twenty thousand, and interest as aforesaid. Edwd. Stirling."

(Then followed the numbers of the shares.) "No. 33, Due 10/13 Dec./45."

That the Indian Laudable & Mutual Assurance Society, in the said document mentioned, is the Indian Laudable & Mutual Assurance Society within in the declaration mentioned; and that the plaintiff, at the time of the making of the said document, and from thence until the time of the commencement of the within mentioned action, was the secretary of the said society. That the name Edward Stirling, set and subscribed to the said document, is of the proper handwriting of! the defendant. That the said sum of twenty thousand company's rupees, at the time of the making of the said document, and when the same became due, was of the value of £2000. of lawful money of Great Britain. The special verdict then left the first issue to the court in the usual form. The findings on the other issues were immaterial to the question now decided."4

Lord CAMPBELL, C. J. The nature and every definition which we find in the books of a promissory note show that it must contain an express promise to pay to a person therein, named or designated, or to his order or to bearer. See Byles on Bills (6th Ed.) p. 4; Colehan v. Cooke, Willes, 396; 2 Bl. Com. 467. If the person to whom, or to whose order, it is to be paid is uncertain, and it depends on a contingency to whom, or to whose order, payment is to be made, it is not a promissory note unless it can be treated as payable to bearer.

It was urged, on behalf of the plaintiff, that we might treat this as a note made payable to the plaintiff, who at the date of the document was the secretary of the society, by his description as such secretary. And it was said that the subsequent part of the instrument, in which it is said that the plaintiff deposits in his hands, and that he authorizes the said secretary for the time being forthwith to sell, points to the then secretary as the person to whom alone the promise is made, and to whom alone the note is payable.

There is no doubt, upon the authorities, that it is quite sufficient to make a note by a description or designatio persona of this kind; but we do not think that we can put the above construction on the document now before us. The use of the words "for the time being" in the first instance, the repetition of them afterwards, and the whole form. and scope of the instrument, satisfy us that the payment was to be made to the individual who, at the time of the instrument falling due, should fill the situation of secretary of the company, and not to the plaintiff, unless he happened to be the secretary at that time. It was, we think, clearly intended as a floating promise, the performance of which was to be made to the person being secretary when the docu

64 The statement is abridged, and the arguments of counsel and part of the opinion are omitted.

ment became due. The other construction would in effect be to hold that the words "the secretary for the time being" meant the now secretary; but we think that the words were used for the very purpose of excluding that construction.

The case of Rex v. Box, 6 Taunt. 325, which was relied on by the plaintiff, is clearly distinguishable from the present. There the note was payable on demand to A. B. and C. D., by name, "stewardesses" of a provident society, "or their successors in office." There the parties to whom the note was given were designated by name, and the description of them as stewardesses, which it was said they were not legally, being mere matter of description, did not alter the promise to pay them on demand; and the judges said that, although they could have no legal successors as stewardesses, still their executors or administrators might sue. In the present case, as we read the document, the money was never to become payable to the plaintiff, and he was never to have any right upon the instrument, unless he happened to fill the situation of secretary to the society at the end of the nine months. In Rex v. Box, the note, as construed by the court, gave an immediate right of action to the payees named, on which they might have immediately sued; and the court seems to have thought that the mention of the successors, who could have no legal existence, might be rejected so that it did not destroy the immediate legal right expressly given to the plaintiffs on demand. Here there is no right given to the plaintiff, except by the words promising to pay "the secretary for the time being." It was not suggested, in that case, that the note would be good if it amounted to such a floating contingent promise as we think that the words are intended to import in the case before us. It was suggested also, in the argument, that, if there were no payee who could sue, the note might be treated as payable to bearer. But we think that in so holding we should give a meaning to the note contrary to the clearly expressed intention of the maker. This is not a case of fraud, or of a fictitious payee; but the defect is, that it is a promise to pay some person to be ascertained ex post facto and we know no authority to show that under such circumstances we can hold this instrument to be a note payable to bearer, because, though valid perhaps as an agreement, it cannot be enforced as a promissory note. The promise is to pay to, or to the order of, an uncertain person. But, if founded on good consideration, it may probably give rights legal or equitable to the society. But we think that we should be making a new instrument if we were to hold it a promissory note payable to bearer; and the case does not fall within any of the decisions cited on this branch of the argument.

As we think, therefore, that this is not a promissory note, our judgment is for the defendant.

Judgment for defendant.65

65 Affirmed in the Exchequer Chamber sub nom. Cowie v. Sterling, 6 Ellis & B. 333 (1856). Accord: Yates v. Nash, 8 C. B. (N. S.) 581 (1860).

HOLMES v. JAQUES.

(Court of Queen's Bench, 1866. L. R. 1 Q. B. Cas. 376.) Declaration by the plaintiffs as payees of a promissory note against the defendant as maker. Plea, traverse of the making.

At the trial, before Shee, J., at the last spring assizes at Leeds, it appeared that the defendant, in 1861, signed the following instrument: "Harrogate, March 18, 1861.

"On demand I promise to pay to the trustees of the Wesleyan Chapel, Harrogate, or their treasurer for the time being, the sum of £100., in four equal installments of £25. each, each of such installments to be due and payable on the 1st Oct. annually, for value received."

The plaintiffs and four other persons were the original trustees of the chapel, the plaintiffs being the survivors. A verdict was returned for the plaintiffs for the amount claimed, with leave to move to enter a verdict for the defendant, if the court should be of opinion that the instrument was invalid as a promissory note.

Manisty, Q. C., moved accordingly. The instrument sued upon is not a valid promissory note, owing to the uncertainty of the payees. It is payable to the trustees or their treasurer for the time being; if this be taken to mean the trustees for the time being, or their treasurer for the time being, then it is uncertain as to both, and is bad as a promissory note. Cowie v. Stirling, 6 E. & B. 333, 25 L. J. (Q. B.) 335; Yates v. Nash, 8 C. B. (N. S.) 581, 29 L. J. (C. P.) 306. But the principal objection to the instrument is that it is payable to the trustees or the treasurer in the alternative, and Blanckenhagen v. Blundell, 2 B. & A. 417, is a direct authority that this uncertainty renders the instrument no promissory note.

[BLACKBURN, J. For all that appeared in that case the persons named in the alternative as payees were strangers in interest. And Bayley, J., suggests that, had there appeared a community of interest, then (as appears here) an action might possibly have been maintained.

[LUSH, J. You admit that a note payable to "trustees" is sufficient without naming them?]

Yes. That cannot be maintained as an objection. See Megginson v. Harper, 2 C. & M. 322, 4 Tyr. 94, and the judgment in Storm v. Stirling, 3 E. & B., at page 812, 23 L. J. (Q. B.), at page 301.

COCKBURN, C. J. I am of opinion that there should be no rule. I fully concur in what Mr. Manisty has said, that the payee must be a person certain, and a promise to pay A. or B., apparent strangers, in the alternative, would not be a good promissory note; but all this instrument shows is that it is payable in the first instance to the trustees as payees, but with the option of the maker to pay to the treasurer for the time being, as their agent.

The treasurer would have no authority to sue in his own name, but only to receive the money on behalf of the trustees. I think it would

be to introduce unnecessary strictness if we were to say that this was not a valid promissory note; and by holding that the treasurer for the time being is simply inserted as an indication that he, as the agent of the trustees, is authorized to receive payment on their behalf, no uncertainty is introduced into the instrument.

BLACKBURN, J. I am quite of the same opinion. I think the true construction of this instrument is that it merely means, I promise to pay to the trustees, or their agents for the time being (the latter being what is implied by law), and I give notice that the treasurer is such agent. This is carrying out the intimation of Bayley, J., in Blanckenhagen v. Blundell, 2 B. & A., at pages 419, 420, that if there had been any community of interest stated between the payees so as in any respect to identify the one with the other, it is possible that an action. might have been maintained on the note. I quite agree with Mr. Manisty's argument thus far, if I thought the treasurer was named as payee, so as to be able to indorse the note had it been payable to order, or to sue upon it, there would have been an uncertainty which would have vitiated it as a promissory note; but this is not the construction which ought to be put on the instrument.

SHEE, J. I agree that the treasurer must be taken to be named as agent.

LUSH, J. In two of the cases cited no person was named except the officer for the time being, consequently, of necessity, the officer for the time must have been taken to be meant as the payee; and, therefore, as there was no certain person named as payee, the instrument was invalid as a promissory note or bill of exchange. Here the trustees are designated as payees, and the promise is to pay them by their agent for the time being.

Rule refused."

PATTON v. MELVILLE.

(Court of Queen's Bench of Upper Canada, 1861. 21 U. C. Q. B. 263.) This was an action brought by Isabella Patton, administratrix with the will annexed of the last will and testament of John Patton, deceased, against Thomas Melville, the defendant, to recover from him the amount of three promissory notes, specially declared upon, made by the defendant, payable to the said John Patton in his lifetime, which were respectively in the following form, excepting that one of them was payable at 12, a second at 18, and the third at 24 months.

"Prescott, August 4, 1858.

"$15. Twelve months after date, for value received, I promise to pay to John Patton, Esquire, treasurer of the building committee of the congregation of St. John's Church, in the town of Prescott, or his

66 Compare Noxon v. Smith, 127 Mass. 485 (1879).