9 Mich. 241 | Mich. | 1861
Lead Opinion
The instrument for $793.98, it is argued, is not a promissory note, because it is payable with current exchange on New York. It calls for $793.98, if paid in the city of New York; if paid elsewhere it calls for that amount with such additional sum, called exchange, as will make the amount where paid equivalent to $793.98 in the city of New York.
A promisory note must be for the payment of a certain sum of money. Exchange varies from time to time, and might have been more or less when the $793.98 were to be paid than when the instrument was given. Is this fluctuation, to which exchange is subject, such a contingency or uncertainty as the rule requiring a note to be for a sum certain was intended to guard against? We think not. Bills of exchange and promissory notes are commercial instruments, and to facilitate commerce, are subject to certain rules of law not applicable to other contracts. These rules should be liberally construed, and in such a way as to effect the object had in view. Exchange is an incident to bills for the transmission of money from one place to another. Its nature and effect are well understood in the commercial world; and merchants having occasion to use ^heir funds at their place of business, sometimes make the
There is nothing in the other objection. The note was endorsed by Ely, Brown & McConnell, and every indorsee is the asignee of the endorser. The judgment must be affirmed with costs.
Dissenting Opinion
dissenting:
I do not think that a negotiable promissory note can be made except for a sum certain. This is an old and familiar doctrine, which is laid down by the best authorities without qualification. And while it is undoubtedly true that railroad bonds and some other securities of like character, made by corporations, have been held negotiable, yet there is no real difference between these and ordinary negotiable paper
In the case of Pollard v. Herries, 3 B. & P. 335, the action being between the immediate parties to the note, no question arose concerning its negotiable character; and there is no English case, that I am aware of, which has given any countenance to innovation on this subject. So far as any practice has existed in this State, in relation to notes payable with exchange, I believe it has not been in favor of their negotiability. The question has been raised several times in the Federal Court within my own experience, and every case I have known has held them not to possess that character. And I doubt exceedingly whether the general opinion of commercial men is by any means settled in their favor.
There is no reason why one kind of uncertainty should
It may be that public convenience would be subserved .by changing the existing rules. But to hold this paper negotiable would, I think, be not an application of a common law principle to a new subject, but the abrogation of a principle entirely. This would come more appropriately from another department of the government. I regret that I have not been able to satisfy myself with the conclusions of the court upon this question, which is certainly one of general interest. Upon the other points in the case I Concur.
Concurrence Opinion
I concur in the opinion of my brother Manning. So faf as relates to the question of exchange, I think this note should be considered as resting upon substantially the same principle as if made payable in New York without exchange.