134 Mass. 245 | Mass. | 1883
The contract declared on contains a promise to pay to the plaintiff or order a certain sum of money in one month from date for a horse received of the plaintiff; if this were all, it would be a promissory note, as the recital of the consideration does not affect the character of the contract. But the contract also contains an agreement that the horse shall remain the property of the plaintiff until paid for in full by the defendant. This is not an agreement relating to the manner in which the promise to pay money may be enforced, but is a substantive agreement. The whole contract describes a conditional sale of a horse. If the money were not paid by the defendant at the time specified, the plaintiff could, if he chose, rescind the conditional sale, and the defendant then would have no right to the horse, and would no longer be liable to pay the note. If the plaintiff should insist upon the performance of his promise by the defendant, the obligation of the defendant to pay the money is in legal effect conditional upon the title to the horse vesting in him when the money is paid in full, and this condition appears on the face of the contract.
The contract contemplates that the payment of the money by the defendant and the transfer of the title to the horse from the plaintiff should be simultaneous acts; and if the horse should die, for example, within the month, without fault on the part of the defendant, the plaintiff would be disabled from transferring the title, and could not maintain an action on the contract. Swallow v. Emery, 111 Mass. 355. The contract is something more than a promise to pay money, and the promise to pay money is not a promise to pay it absolutely and at all events; and therefore the contract is not a promissory note within the meaning of the Gen. Sts. c. 155, § 4, on which, if signed in the presence of an attesting witness, an action could be brought, under § 7, at any time within twenty years after the cause of
As the action was not brought within six years after the cause of action accrued, the entry must be,
Judgment for the defendant.
