74 Pa. 13 | Pa. | 1873
The opinion of the court was delivered, July 2d 1873, by
This case hinges upon whether the instrument is a negotiable promissory note. It contains language sufficient to make it one. That language is a promise to pay twelve months after date, to the payee named, or bearer, a specific sum of money, for value received. It is contended, however, that it contains too much; that the addition of “ or before, if made out of the sale of W. S. Coffman’s Improved Broadcast Seeding Machine,” changes its character and destroys its negotiability. The addition of some words beyond what are necessary to constitute a negotiable promissory note, does not destroy its character as such. Thus it was held in Zimmerman v. Anderson, 17 P. F. Smith 421, that the addition of “ waiving the right of appeal, and all valuation, appraisement, stay and exemption laws,” did not destroy its negotiability.
It is urged that the character of this instrument is changed by the fact that in the contingency of the sum being sooner realized from the sale of the machinery, it might become payable within the year.
The general rule, to be. extracted from the authorities, undoubtedly requires that, to constitute a valid promissory note, it. must be for the payment of money at some fixed period of time, or upon some event which must inevitably happen; that it is not such a note if it purports to make the note depend upon a contingency or uncertainty. Nor is it sufficient that the contingency does in fact
In Jordan v. Tate, 19 Ohio 586, it was ruled that the negotiable character, of a promissory note is not affected by the fact that it is made payable by its terms on or before a future day therein named. Though the maker has the right to pay such note at any time after its date, yet, for all purposes of negotiation, it is to be regarded as a note payable solely on the day therein named.
No case has been cited in which this court has distinctly ruled upon such a form of note, yet we think this decision is in accord with the general sentiment of the legal mind of our state.
In Carter v. Buck, 7 Metc. 588, in addition to language sufficient to give it negotiability, the note proceeded, “ it being for property purchased of him in value at this date, as being payable as soon as can be realized of the above amount for the said property, I have this day purchased of said Pero (the payee), which is to be paid in the course of the season now coming.” The instrument was held to be a negotiable note. In giving the opinion of the court, Shaw, C. J., said, “ we think the meaning was this, that the signer for value received in the purchase of property, promised to pay Pero, or bearer, the sum named as soon as the termination of the coming season, and sooner, if the amount could be sooner realized out of the fund. Such reference to the sale of the property was not to fix the fund from which it was to be paid, but the time of payment. The undertaking to pay was absolute, and did not depend on the fund. So as to the time, whatever time may be understood as the ‘ coming seasonwhether harvest time or the end of the year, it must come by mere lapse of time, and that must be the ultimate limit of the time of payment.”
Carlon v. Kenealy, 12 M. & W. (Exch.) 139, was an action brought by an endorsee against'the maker. The note was payable by instalments, subject to a condition that on default being made in payment of the first instalment, the whole amount should become immediately payable. The declaration averred that the payee endorsed the note to plaintiff; that the defendant made default in payment of the first instalment, and that he had not paid the amount of the note. Upon special demurrer, on the ground that the note was not made according to the custom of merchants, and consequently that the right of action thereon could
To these authorities is interposed the dictum of Lord Campbell, C. J., in Alexander v. Thomas, 71 E. C. L. R. 333; the language of the note, however, in that case failed to declare clearly that the contingency must necessarily precede the ninety days named for the payment. It was “ payable ninety days after sight, or when realized.” So it was at least open to question whether, “ when realized,” might not mark the doing of an act beyond the ninety days. If so, it was such a contingency as to its absolute payment as clearly to destroy the negotiable character of the instrument.
The principle to be deduced from the authorities is this. To constitute a negotiable promissory note, the time, or the event, for its ultimate payment, must be fixed and certain; yet it may be made subject to contingencies, upon the happening of which, prior to the time of its absolute payment, it shall become due. The contingency depends upon some act done or omitted to be done by the maker, or upon the occurrence of some event indicated in the note; and not upon any act of the payee or holder, whereby the note may become due at an earlier day. Hence it is not in conflict with the decision of this court, which declared that if the instrument contained a power under which the payee might enter judgment upon it, its negotiable character was thereby destroyed. We think the learned judge was correct in holding this note to be negotiable. None of the other errors assigned were urged.
Judgment affirmed.