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Carnwright v. Gray, 127 N. Y., 92.

this form : “Due Kimball and Kenston, three hundred and 12 twenty-five dollars payable on demand.” Judge Nelson said : “ The instrument is a promissory note within the statute. Neither the acknowledgment of value received or negotiable words are essential to bring it within the statute.” (See also Carver v. Hayes, 47 Me., 257; Franklin v. March, 6 N. H., 364.)

No authority is cited in the courts of this state or of England holding that a non-negotiable note is not within the terms of the law cited, and we are of the opinion that the language of our statute includes a note payable to a person without words of

13 negotiability.

The instrument sued upon being, therefore, a promissory note within the statute of this state, it follows that it imports a consideration. By the express terms of the statute the sum of money therein mentioned is declared to be “due and payable as therein expressed.” That it is “ due and payable” according to its terms is the legal conclusion which the court must draw from the instrument itself. A valid contract is thus declared to exist, and of course a consideration must be implied. Hence “ value received” need not appear on the face of the note, as those 14 words express only what the law implies. (Hatch v. Trayes, 11 Ad. & El., 702; Hall v. Farmer, 5 Denio, 481.) The effect of laws which make promissory notes negotiable, or which authorize actions of debt upon them, though non-negotiable, is to take them out of the common law rule which requires that every contract must be shown by the party who sues upon it, to be supported by a consideration, and enables the holder to maintain an action thereon without alleging or proving a consideration. In other words a consideration is implied from the character of a

15 the instrument (Peasley v. Boatwright, 2 Leigh, 195; Hatch v. Trayes, supra).

The English statute was enacted to settle the controversy that prevailed, whether under the customs of merchants promissory notes were negotiable.

They were thereby declared to be assignable or indorsable over in the same manner as inland bills of exchange were, according to the customs of merchants, and holders were empowered to maintain actions thereon in the same manner as they might

Carnwright v. Gray, 127 N. Y., 92.

16 do upon any inland bill of exchange made or drawn according to the custom of merchants.

Our statute contains similar provisions. Promissory notes and inland bills of exchange.were, by virtue of these laws, put upon an equality. They were made negotiable if they contained words of negotiability, but whether negotiable or not, and whether they expressed value received or not, it was no longer necessary in actions thereon to aver and prove consideration.

Such was and is the rule as to inland bills of exchange. (1 Daniel on Negotiable Inst., § 161; Raubitschek v. Blank, 80 17

N. Y., 479; A verett's Admrs. v. Booker, 15 Gratt., 163; Wells v. Brigham, 6 Cush., 6.)

And the same rule under the statute was made applicable to promissory notes. (Townsend v. Derby, 3 Metcalf, 363; Dean v. Carruth, 108 Mass., 242; Bank of Troy v. Topping, 9 Wend., 277; 13 id., 557; Chitty on Bills [9th Am. Ed.], 78–181; Paine v. Nalke, 57 How. Pr., 273; Story on Promissory Notes, $ 51; 3 Kent's Com., 77, 78; 1 Parsons on Conts. [6th ed., 249];

1 Parsons on Bills, 193.) 18 The statute does not require a note to express value received

upon its face, and no definition of such an instrument requires the expression of that fact.

The note sued upon, although by its terms payable after the death of the maker, was a valid instrument.

A promissory note is defined to be a written engagement by one person to pay absolutely and unconditionally to another person therein named, or to the bearer, a certain sum of money at a specified time or on demand. (Story on Prom. Notes, $ 1;

Coolidge v. Ruggles, 15 Mass., 387.) 19

It must contain the positive engagement of the maker to pay at a certain definite time and the agreement to pay must not depend upon any contingency, but be absolute and at all events.

Tried by this standard the instrument set out in the complaint was a valid promissory note. The fact that it was payable after the death of the maker did not affect its character. (3 Kent's Com., 76.)

It follows from these views that the motion to dismiss the complaint was properly denied, and there was no error in the

Carnwright v. Gray, 127 N. Y., 92.


charge of the court. The point made by the appellant that the 20 court erred in its charge as to the burden of proof on the question of consideration, assuming the evidence pro and con upon that question was given, was not raised at the trial. The

proposition made by the defendant at the close of the judge's charge, and the only one to which an exception appears in the record, was as follows:

** In order that there may be no doubt about our position we ask the court to charge the jury that there has been no evidence given of consideration, and to direct a verdict for the defendant upon that ground.”

21 The defendant having thus squarely planted himself on the ground that there was no evidence of consideration, and asked the court to direct a verdict in his favor, cannot now claim that there was evidence for the jury and that he was entitled to a different instruction from that given. The defendant's claim all through the trial was that the note did not import a consideration, and that the plaintiff could not recover without proof of that fact, and his motion to dismiss the complaint and direct a verdict in his favor, and his exceptions to the charge, all sharply present that question; but he nowhere claimed that he had given evi- 22 dence which, if believed by the jury, overcame the presumption arising in favor of the note.

This clearly appears from the statement I have quoted.

The exceptions to the admission of evidence present no error and the judgment should be affirmed.

All the judges concurred, except FOLLETT, CH.J., and VANN, J., dissenting, and PARKER, J., not voting.

Judgment affirmed.

Keteltas v. Myers, 19 N. Y., 231.


New York Court of Appeals, 1869.

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[Reported in 19 N. Y., 231, rev'g 3 E. D. Smith, 83.] 1. The complaint alleged that defendant, on a day specified, for value

received, made and delivered to plaintiff, his promissory note in writing, and payable to plaintiff's order, and indorsed by him [setting forth a copy]; that there was due and owing plaintiff the said sum of [specifying it], with interest thereon from [specifying date). Held, sufficient; and that a demurrer on the ground that it was not stated that plaintiff was owner of the note, or that there had been a breach, or that anything was due or owing upon it, or from defendant was

frivolous. 2. “ Due” is sometimes used to express the mere state of indebtment,

and then, is an equivalent to owed or owing ; sometimes to express the fact that the debt has become payable.



Action on a promissory note.
The allegations of the complaint were as follows:

“1st. That the defendant, on the first day of July, 1853, for value received, made and delivered to the said plaintiff his promissory note in writing, and payable to the order of the plaintiff, and indorsed by him, of which the following is a copy :

NEW YORK, July 1st, 1853. Sixty days after date, I promise to pay to the order of Eugene Keteltas, two hundred and four 67-100 dollars, for value received.

JAMES MYERS, Jr. $204.67.

661 Water street." That there is due and owing the said plaintiff the said sum of two hundred and four 67-100 dollars, with interest thereon from the second day of September, one thousand eight hundred and fifty-three.

WHEREFORE the plaintiff demands judgment against the said defendant for the said sum of two hundred and four 67-100 dollars, with interest from the 2d day of September, 1853.”

The Code of Procedure then in force provided :

$166 [2]. In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due


Keteltas v. Myers, 19 N. Y., 231.

to him thereon from the adverse party a specified sum, which he 4 claims.

Section 534 of the Code of Civil Procedure, by which the above provision is superseded, is as follows:

$ 531. Where a cause of action, defence, or counterclaim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect. *

5 The Court of Common Pleas at Special Term sustained a demurrer to the complaint on the ground of insufficiency.

The court held that plaintiff's title was sufficiently shown because there was no averment of a transfer of the note by indorsement; the mere statement that plaintiff indorsed the note without alleging a delivery amounted to nothing.

But there was no averment of a breach ; nor 66 that the sum was due and owing from the defendant." The General Term affirmed the judgment, on the same grounds.

6 The Court of Appeals reversed the judgment.

ALLEN, J. There are four grounds of objection specified in the demurrer. The first is that it does not appear, and is not stated or averred, that the plaintiff is the owner or holder of the note in the complaint mentioned. The allegation is, that the defendant, on the 1st day of July, 1853, for value received, made and delivered to the plaintiff his promissory note, etc. The allegation that the note was made to the plaintiff would have been a sufficient averment of ownership, without averring a delivery. 7 (7 Term R., 596; 5 East, 476; 10 How., 275 ; 12 id., 452.) But it is unnecessary to dwell on this point, as the court below held it not well taken, and it was not insisted upon, but rather abandoned, on the argument here.

The second ground of demurrer is, “ that it does not appear, and is not stated or averred, that the same or any part thercof

* The section is merely permissive, and the pleader is not confined to this mode of pleading. Mayor, etc., v. Doody, 4 Abb. Pr., 127.

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