88 Md. 552 | Md. | 1898
delivered the opinion of the Court.
The declaration filed by the appellants against the appellee contains eight counts — the first six being the
There is some apparent conflict between them owing to the fact that many of the cases turned on the question whether the paper sued on was a promissory note, or a negotiable instrument, and not whether there could be a recovery in any form of action when such limitations had been inserted in the evidences of debt sued on. Most of the decisions hold that a suit on an obligation payable “ when the maker is able,” or words to that effect, can be maintained upon an allegation and proof that he was able before suit brought. In Davis v. Smith, 4 Esp. Rep. 36, the defendant admitted he was “ bound in honor and should pay when he was able.” Lord Kenyon held that he was liable upon proof of ability to pay. That was followed in Mitchell v. Clay, 8 Texas 443. In Salinas v. Wright, 11 Texas 572, the suit was on an instrument which said, “ which sum I bind myself to pay so soon as circumstances will permit me.” It was held not to be a promissory note and that the plaintiff could not recover on that instrument alone without proof
There is another class of cases in which the makers of the instruments have undertaken to limit the time of payment to their convenience. In Works v. Hershey, 35 Iowa 340, it was held that the maker of a note which read “ on demand after date I promise to pay . . . payable at Cincinnati when convenient ” was bound to pay it within a reasonable time. The Court said the latter words could not nullify the words “ on demand after date I promise to pay.” In Lewis v. Tipton, 10 Ohio St. 88, a note payable “ when I can make it convenient with ten per cent, interest till paid ” was held to create a legal liability upon the maker and to be payable within a reasonable time after its date. In Smithers v. Junker, 41 Fed. Rep. 101, Judge Gresham held that a note “ payable at my convenience and upon the express condition that I am to be the sole judge of such convenience and time of payment ” may be enforced by an action after the expiration of a reasonable time, on demand and refusal of payment. In Barnard v. Cushing, 4 Metc. 230, a note was given by which defendants promised to pay a sum named on demand with interest. At the same time the payees endorsed on the note “ we agree not to compel payment for the amount of this note, but to receive the same when convenient for. the promisor to pay it.” It was held that no action could be maintained upon the promise. But in Page v. Cook, 164 Mass. 1x6, the suit was on a note which read “ on demand after date I promise to pay . . . payable when payor and payee mutually agree,” and it was construed
We do not understand a case of this character to be governed by such as those where it is stipulated that an article is to be furnished subject to the approval or satisfaction of the proposed purchaser, which approval or satisfaction is made a condition precedent to the right to recover compensation or the contract price. There the defendant does not get the plaintiff’s property and then wilfully refuse to pay for it, and as the contract is made subject to the condition that he shall approve of or be satisfied with it before accepting it, the Court will not dispense with the condition and say that the article was of a quality or character that ought in reason to have been accepted as satisfactory. But in cases such as this the defendant has received the money, or other consideration, and has acknowledged his indebtedness
Now let us apply the law as thus established to the case before us. If this certificate of indebtedness had been simply to pay “ at such times and in such sums ” as the defendant was able, upon proper allegations and proof that it was able to pay the whole, or such part as gave the Court jurisdiction, the plaintiffs could unquestionably have recovered — the amount being payable when the defendant was able, and it being shown to be able, the obligation would have matured by the very terms of the contract. But the terms are when it might “ feel able.” To say that a corporation can feel able may seem odd, at first glance, but, as it must act through its agents, it means when its officers, directors or agents, whoever they may be that have charge of such matters, feel able — that is to say, as we understand the use of that term, when they are “ conscious of being ” able or know it is able. It was necessary to make such allegations as would bring the defendant within the meaning of the contract. This count should not only have alleged that the defendant was able to pay, either the whole of the obligation or whatever part of it the plaintiff proposed to prove it could pay (so as to embrace the terms “ at such times and in such sums,” etc.), but that it felt able, of knew it was able, or something that would be equivalent to the terms used in the certificate of indebtedness sued on. If the facts so justified, there could have been added the allegation that it fraudulently refused to pay, etc. If the declaration had so alleged we think it would have been sufficient so far as this part of the certificate of indebtedness is concerned, under the authorities we have already cited. The only cases referred to by the appellee which seem to be to the contrary are those of Barnard v. Cushing and Nelson v. Von Bonhorst, and what we have already said will relieve us of a further discussion of them, excepting to add that the case of
But this count is defective in another respect. The promise to pay was further qualified by saying “ provided, that all certificates of similar import should be paid upon pro rata and that no preference should be given to any such certificate over others.” That is attempted to be avoided by alleging that “ said company has received and accepted a surrender and extinguishment of all other certificates of similar import.” There is no allegation that anything had or had not been paid on them, nor is it stated under what circumstances the other certificates had been surrendered and extinguished. We have nothing to inform us as to the circumstances under which they were issued, and are confined to the narr., but suppose the holders of all the other certificates only received a small sum — five or ten per cent, for example — and then surrendered their certificates, it is apparent that the appellants could not recover, in an action on this certificate, more than was paid to the others, without at least some allegation and proof of fraud or collusion. Or if all were surrendered and extinguished without any payment on the belief that
Judgment affirmed, appellants to pay costs above and below.