6 Ohio 279 | Ohio | 1834
Lead Opinion
delivered the opinion of the court:
Two points are taken by the plaintiff in error. This writing is not a promissory note; if it is, its production is no proof of its execution against Cushing and Hunter, and without such proof the defendants can not be charged. The phraseology of the statute seems to preclude the latter of these objections. It provides that
And we do not assent to the limited meaning which the plaintiff’s counsel would attach to the phrase, “ promissory note.” It 281] need not be negotiable. Any absolute promise to *pay a certain sum of money at a specified time, if it constitute the entire contract, may be taken to be a promissory note. Was this engagement of that description ?
It was an absolute promise to pay one hundred and forty-three dollars and twenty-two cents in three months; but if a contingency happened, which depended on the promise, one-fourth the amount became payable sooner. In addition to this the maker promised to pay three dollars and fifty cents for tobacco, if delivered. The first part is a promissory note merely; does the additional terms change this character?
A majority of the court believe not. It will be observed that it is not per se a contract, binding Foster to the delivery of the tobacco; it was a promise to pay, if delivered. The other contract was complete without it; the additional terms acquired effect at the option of Foster; he held their absolute promise to pay a specified sum in three months, which constituted the entire contract, if he took no steps to extend the liability of his debtors beyond. His first count is framed upon this promise; either writing is in every sense a promissory note, and as such rendered evidence to support it, by the statute, without proof of its execution.
It is further urged that the first and second counts are bad, from omitting to set forth a consideration. If the writing be a promissory note, none is necessary to be averred under our decis
Judgment is affirmed.
Dissenting Opinion
dissented:
I understand a promissory note to be a written promise by one to another, to pay a certain sum at all events, in a specified time.
The writing under consideration is in these words:
“ Three months after date we promise to pay Samuel Foster, or order, one hundred and forty-three dolllars and twenty-two cents; provided Samuel Foster delivers the crop of tobacco raised by him and Trockmiller, then said Foster is to have one-fourth of the above in hand, and, in addition, three dollars and fifty cents per hundred for that part yet to be ^delivered, payable one- [282 fourth in hand, and- the balance in one hundred and twenty days. April 28, 1827.
“Thomas H. Cushing,
Ring & Rice,
J. H. Harris, per.
T. H. Cushing ”
By this agreement, other things are embraced than the mere payment of a certain sum at a stipulated'time — the purchase of an entire crop of tobacco, at a certain rate per hundred, is embraced within the legal import of the instrument; it looks to the purchase and delivery of this crop by a third party, Trockmiller, and the price to be jiaid. Upon the completion of this stipulation, depends what sums shall be paid down, or in ninety or one hundred and twenty days. If the crop is delivered, then one hundred and twenty-one dollars and sixty-one cents, and one-fourth of the crop at three dollars and fifty cents per hundred, is to be paid in hand, and one hundred and twenty-one dollars and sixty-one cents in ninety days, and three-quarters of the crop of tobacco in one hundred and twenty days. I am unable to see, how the first member of this article can be disconnected from the residue, so as to make it a promissory note. Indeed, the plaintiff declares upon the article as one for the tobacco in one count. Can the instrument change its character, at the will of the party holding it, and be on the first count a note, and on the second an
I think it not a promissory note; and, therefore, not within the statute dispensing with proof of execution.