Collins v. Bradbury, 64 Me. 37

Collins v. Bradbury

64 Me. 37 | Me. | 1875

Appleton, C. J.

This is an action of assumpsit by the plaintiff as the indorsee of a note of which the following is a copy:

“Port Fairfield, June 24, 3869.

For value received, I promise to pay Joseph Chandler or order ninety dolls., one-half of which to be paid in March next, the remainder in Sept, next, after with interest. Said promise made for a colt, this day taken, said colt holden for the payment of said amount. C. C. Bradbury.”

Indorsed : “without recourse to me. Joseph Chandler.”

It is objected-that the note is not negotiable, inasmuch as by the last clause the consideration of the note is stated, and that the colt should be holden for its payment.

The essentials of a promissory note are, that it is payable to order or bearer, in money, at all events, and not upon any contingency, nor out of any particular fund.

The note in suit has all these elements. That it states the consideration for which it was given ; and that, if recorded, it might operate as a mortgage, does not render it any the less a promissory note. Thus, in Fancourt v. Thorne, 58 E. C. L., 310, the note was in the following terms : “On demand I promise to pay *39II. or order, £500,for value received, with interest at the rate of,” &c.; “and I have lodged with the said II, the counterpart leases signed by D.,” &e., “for ground let by me to them respectively as a collateral security for the said £500 and interest,” and the court held that it was a promissory note, and might be sued as such. In Arnold v. Rock River Valley R. R. Co., 5 Duer, 207, it was decided that an instrument, which in its terms and form., is a negotiable promissory note, does not lose that character because it also states, that the maker has deposited bonds as collateral security for its payment, and that he agrees on non-payment of the note at maturity, that they may be sold in a manner, and upon a notice specified, and he will pay any deficiency necessary to satisfy the note, and the expenses of such sale. “The terms of this contract,” observes Bosworth, J., “do not modify that part which contains a promise to pay, absolutely, to the order of the persons named in it, a sum certain, and on the day specified.” So here, that there may be property holden to secure its payment, does not prevent the note in suit being negotiable.

Objection is taken that the note does not sustain the declaration. True, the writ is not a model of artistic pleading, but we think there is no fatal variance. The note has “ninety dolls.;” the declaration, “$>90” (in figures); the note says, “remainder,” the declaration, “balance;” the note says, “Sept.,” the declaration, “September;” but all this does not prevent the person and case from being rightly understood. The note is payable with interest. “The remainder in September next after,” is next after the-preceding payment, which was to have been made in March.

Exceptions overruled.

Dickerson, Daneorth, Yirgin, Peters and Libjbey, JJ., concurred.