16 Barb. 643 | N.Y. Sup. Ct. | 1853
The writing upon which the action was brought, is not a promissory note; it not being for the payment of money only. (Story on Prom. Notes, §§ 17, 18. Story on Bills, § 43.) It contains, in addition to a promise to pay money, stipulations to do other things, and the whole contents form an entire contract. The clause for the payment of money cannot be detached, and regarded and enforced separate from the rest.
Hot being a promissory note, although it expresses that the money specified therein is payable to the person named as payee or bearer, it was not negotiable,{ and it was incumbent upon the plaintiff in order to maintain his action, to prove, among other things, an assignment of the .contract to himself, unless the fact was admitted, or such proof was virtually waived by the defendant.
The plaintiff produced the contract on the trial before the justice, but it does not appear by the return, which alone can be regarded in deciding the case, that, any evidence of an assignment of it to him was given ; nor does it appear that the point was made before the justice, that the plaintiff had not proved title to the demand. It is insisted, on the part of the plaintiff, that by omitting to make the objection there, the defendant waived it; and I am inclined to think this is a sound position. The liability of the defendant on the contract, to some one, was abundantly proved; the defect in the plaintiff’s proof was one
Welles, Johnson and T. R. Strong, Justices.]
I am therefore of opinion, that the judgment of the county court should be affirmed.
Judgment affirmed.
