Roberts v. Smith

58 Vt. 492 | Vt. | 1886

The opinion of the court was delivered by

Yeazey,- J.

Although it has long been settled in this State that a written contract having the usual form of a promissory note, but payable in some specific article, may be treated as a promissory note as to the form of declaring upon it, and the necessity of proof of consideration, and in some other respects, — Rob. Dig. 92, — yet such an instrument is not negotiable because not payable in money. Collins v. Lincoln, 11 Vt. 268; 1 Dan. Neg. Inst. 42.

The instrument declared upon was not even a promise to pay a given sum in specific articles, but only to pay “ one ounce of gold.” It stands for consideration upon the question of the sufficiency of the declaration under the demurrer thereto, as though it were a promise to pay one bushel of wheat. This suit is by a purchaser from'the payee. The plaintiff cannot stand upon the first count, as the instrument declared upon is not negotiable, and no promise by the defendant to the, plaintiff is alleged.

But the plaintiff relies mainly upon the new count; and claims, to recover thereon as the assignee of a chose in action upon the special promise of the maker to pay the same to him.

The pleader sets out the instrument as a promissory note, and avers that the payee “ for a valuable consideration ” to him paid by the plaintiff, sold and transferred the note to the plaintiff, and that the latter became and is, the sole and absolute owner thereof, of which the defendant had notice, and, “ in consideration of the premises,” “ specially promised the plaintiff to pay” to him “the contents of said note according to the tenor and effect of the samé,” etc.

If the instrument had contained a promise to pay a sum certain in specific articles, this count so far as objection to it is urged on the ground of insufficiency of the averment of consideration for the defendant’s promise, and of the consideration from the plaintiff to the original payee, King, would be good. Smilie v. Stevens, 41 Vt. 321; Moar v. Wright, 1 Vt. 57. But such is not the instrument. It is but a promise to pay; that is, deliver a certain article of merchandise definite in «amount. Because gold enters into the composition of money, we cannot assume that “ an ounce of gold” is money, or that it has a fixed and unvarying value. The contract in question lacks not only the quality of negotiability, but certainty and precision as to. the amount to be paid. Upon failure to perform there would be no definite specified sum due as in case of a promissory note. The declaration is drawn upon the theory that the instrument was a promissory note except in respect to negotiability. No value is alleged in the thing promised. The pleader claims to be entitled to the value of a commodity without alleging it has any value. It is plainly impossible to apply to this paper a form of declaration adapted solely to a promissory note. Although it has the form of a promissory note it is not such, and cannot be treated as such in pleading. It must be treated as a simple contract for the delivery of merchandise. As a declaration upon such a contract it is wanting in proper averments as to consideration, as to value, and as to breach and damages. Chit. Pl. tit. “Of the Declaration,” *295, et seq.

Judgment reversed; first and amended counts adjudged insufficient; cause remanded.