15 Barb. 274 | N.Y. Sup. Ct. | 1853
The instruments in question are not bills of exchange, or promissory notes, as the sums to be paid are not specified. (Story on Bills, § 42. Id. on Prom. Notes, §§ 19,20,21.) But I think they are valid special agreements. The legal effect of the omission of the name of a drawee is, that the drawer is also the drawee. (Story on Bills, §§ 39, 85.) He promises absolutely to pay, instead of conditionally, on the default of another person. As to the sums to be paid, it is sufficient to the validity of the instruments, as agreements, that the sums can be ascertained by reference to the market price of wheat, which must control, except so far as the parties have provided a different standard. I consider it clear, that the instruments import a sale of the wheat. The word “ pay,” implies an indebtedness, and it being expressed that the payment is to be for wheat, a sale of that must be understood. This construction is strengthened, rather than weakened, by the words “ in store,” in one of the contracts, as showing that the wheat had been received. Taking this view, the contracts are substantially, that the defendant will pay the plaintiff the market price for specified quantities of wheat sold to him by the plaintiff, deducting three cents per bushel from one quantity sold. Here are the promissor, the promisee, the sum payable, and the consideration therefor; and there is no want of reasonable certainty. The evidence offered by the defendant would have tended to prove, not that the instruments were without consideration, but that they were not
Selden, Johnson and T. R. Strong, Justices.]
Motion for a new trial denied.