119 Mass. 137 | Mass. | 1875
Each of the instruments in suit expresses a promise to pay a certain sum of money in a year and a half from its date, “ or sooner at the option of the mortgagor,” with interest at a certain rate “ during said term.”- The principal sum is to be paid, either at the time specified, or at any earlier time that the mortgagor may elect. The interest is to be computed only until the note is paid. Both the time of payment of the principal, and the amount of interest, are uncertain, and depend upon the election of the mortgagor, who would seem, from the memorandum upon the note itself, to be the maker of the note. But if he were a third person, it would not aid the plaintiff. In either alternative, the contract, not being a promise to pay a fixed sum of money at a definite time, lacks the essential quality of a negotiable promissory note, and cannot be sued upon as such. Way v. Smith, 111 Mass. 523. Hubbard v. Mosely, 11 Gray, 170. Story on Notes, § 22.
The allegation in the declaration, that the payee indorsed each note to the plaintiff, is, with all other allegations in the declaration, denied by the answer, and is legally impossible upon its face. The objection to the plaintiff’s right to maintain this action against the defendant was open at the trial, and, if judgment had been rendered on default, would have been open on writ of error. Davis v. Travis, 98 Mass. 222. Hubbard v. Mosely, 11 Gray, 170. Haskell v. Lambert, 16 Gray, 592. Hollis v. Richardson, 13 Gray, 392. Exceptions sustained.