LEADING CASES ON BILLS, NOTES,

AND CHECKS.

FORM AND REQUISITES.

THOMPSON v. SLOAN et al.

(23 Wendell, 71. Supreme Court of New York, January, 1840.)

Payable in Canada money. — A written promise, executed in New York, to pay in that State a certain sum in Canada money is not a promissory note. Parol evidence is admissible to show the meaning of the term "Canada money" where the instrument was executed.

ASSUMPSIT on an instrument declared on as a promissory note, against the maker and indorsers jointly. The instrument was dated at Buffalo, New York, and signed by James Sloan and John Wilkinson, who therein promised to pay $2,500, twelve months after date, to the order of Johnson, Hodge, & Co., " in Canada money," at the Commercial Bank in Buffalo; and it was indorsed by the payees.

The questions in controversy were, first, whether the paper were a negotiable note; and secondly, if it prima facie were, whether parol evidence could be received to explain the meaning of the term "Canada money," as understood in Buffalo.

COWEN, J. A promissory note must, in order to come within the statute, like a bill of exchange, be payable in

money only, in current specie ; Bayl. on Bills, 1, 10th Am. ed. of 1836; Ex parte Imeson, 2 Rose, 225; or at least in what we can judicially notice as equivalent to money. Accordingly, a note payable in bills of country banks, Jones v. Fales, 4 Mass. 245, in Pennsylvania or New York paper currency, current in Pennsylvania or New York, Leiber v. Goodrich, 5 Cowen, 186, in notes of the chartered banks of Pennsylvania, though the note was made and payable in the State of Pennsylvania, M'Cormick v. Trotter, 10 Serg. & Rawle, 94; see Cook v. Satterlee, 6 Cowen, 108 [post, 9]; in paper medium, Lange v. Kohne, 1 M'Cord, 115; see M'Claren v. Nesbit, 2 Nott & M'Cord, 519; or in cash or Bank of England notes, Ex parte Imeson, before cited, 2 Buck, 1, s. P., has been held without the statute.

The farthest we have gone is, to say that a note drawn and payable here, in New York bills or specie, Keith v. Jones, 9 Johns. 120, or in bank-notes current in the city of New York, Judah v. Harris, 19 Johns. 144, is negotiable. In both cases the court went on the ground of a right to take judicial notice that New York bills, and especially bank-notes current in the city of New York, were customarily considered and treated as equivalent to specie. And, in the last case, they said, though the defendant might have a right to pay with foreign bills current in the city, the note was still to be regarded as payable in current money.

Admitting that the note in question imports an obligation to pay in gold and silver, current in Canada, I do not see on what principle we can pronounce it to be payable in money, within the meaning of the rule. It is not pretended that coins current in Canada are, therefore, so in this State. As gold and silver they might readily be received: and so might the coin of any foreign country, Germany or Russia, for instance; but the creditor might, and in many cases doubtless would, refuse to receive them, because ignorant of their value. In law, they are all collateral commodities, like ingots or

diamonds, which, though they might be received, and be in fact equivalent to money, are yet but goods and chattels. A note payable in either would, therefore, be no more negotiable than if it were payable in cattle or other specific articles. The fact of Canada coins being current here is not, at any rate, so notorious that we can judicially notice them as a universally customary medium of payment in this State; and if not, they are no more a part of our currency than Pennsylvania bank-bills. Leiber v. Goodrich, before cited. Nor do I perceive in the case any proof, or offer to prove, that such coins were universal currency.

This view of the case is not incompatible with a bill or note payable in money of a foreign denomination, or any other denomination, being negotiable, for it can be paid in our own coin of equivalent value, to which it is always reduced by a recovery. Chit. on Bills, 615, 616, Am. ed. of 1839; Deberry v. Darnell, 5 Yerg. 451. A note payable in pounds, shillings, and pence, made in any country, is but another mode of expressing the amount in dollars and cents, and is so understood judicially. The course, therefore, in an action on such an instrument is to aver and prove the value of the sum expressed, in our own tenderable coin. It is payable in no other, vide Bayl. on Bills, 23, Am. ed. of 1836, and the cases there cited, whereas on the note in question, Canada money, a specific article, would be a lawful tender; Canada coppers, for aught I see, and, under our own decisions, bank-bills commonly current in Canada, would also be tenderable.

Nor is it necessary to deny, that had this note been made, indorsed, and payable in Canada, it would have been negotiable. It would then on its face have been payable in the current coin of the country where it is made. The objection is, that the note was made, indorsed, and payable here, in a foreign commodity, which the payee was entitled to demand specifically; and to reject gold and silver current in the United States. It is of course the same thing under the ex

trinsic evidence offered by the plaintiff, and received by the judge. The Canadian statute merely proved what coins were current as Canada money; which could not be recognized as the money of this country. In the light of that proof, the note must be read as necessarily payable in Canada money, current by law in that province. It did not improve the case, without following it with some statute making that money, as such, current here; or, at least, showing that it was, in fact, so notoriously current among us that we should be entitled to take judicial notice of the fact. The latter is the utmost that, by our cases, the plaintiff could claim; though we have gone farther than the cases decided in any other State or country, so far as they were cited on the argument, or have come under my observation, except a case in Tennessee, Deberry v. Darnell, 5 Yerg. 451. The instrument was payable in North Carolina notes, yet held negotiable. In M'Cormick v. Trotter, I fear we were somewhat justly criticised for the high ground on which we had placed all our State bills in Keith v. Jones. At any rate, Mr. Justice Duncan very truly reminded us that New York State bills had depreciated in common with those of Pennsylvania. A remark which he made as to the note in that case, which was payable in Pennsylvania bills, would, I apprehend, be nearly applicable to our own at some stages of our currency; viz., that "it was payable in more than forty kinds of paper of different value."

The evidence offered, that the makers were desirous to draw the note payable in Canada bills, which the plaintiff refused, tended to prove no more than that the note was intended to be payable in Canadian current coin. It was, therefore, as we have seen, irrelevant, besides being, as I think, inadmissible, because it was direct independent evidence of intention, as explained by the parties at the very time of drawing the note. Every thing of this kind which the parties declared was merged by the written agreement.