Tittle v. Thomas

30 Miss. 122 | Miss. | 1855

HaNDY, J.,

delivered the opinion of the court.

This was an action brought by the plaintiff in error upon a promissory note made by the defendants in error.

The allegations of the petition are, that the defendants, on the 4th July, 1850, made their promissory note, whereby they then and there promised to pay to “ the estate of Benjamin Thomas, deceased,” twelve months after that date, the sum of $1860.50 for value received, and had not paid the same, demanding judgment for the principal, interest, and costs, and making profert of the letters of administration, of the estate of the intestate, granted to the plaintiff by the proper court.

The defendants pleaded two pleas, to which the plaintiff demurred, and which were held to be sufficient to bar the action. Leave was thereupon given to the plaintiff to amend his complaint or declaration, by which it appeal’s that the plaintiff’s demurrer was extended back to his declaration. No amendment was made, and judgment was then rendered for the defendants.

The question for determination under this state of the case is, whether the declaration showed a good cause of action, and .this depends upon the question whether the cause of action, as it is stated in the declaration, is in law a promissory note.

It is one of the cardinal rules, in relation to the validity of a written instrument as a promissory note, that the person, or body corporate or politic, to whom it is payable, should be clearly expressed upon its face. Such a party must be distinctly shown by the paper. And though it is not necessary that the name of the payee should expressly appear on the face of the note, it is indispensable that the designation be such, that from it the person can be certainly ascertained. Story, Prom. Notes, §§ 35, 36. Under this qualification of the rule, a note made payable to the order of a person named oh the face of it, has been held valid; and a note payable on its face to a party not in esse, and purporting to be indorsed in blank by the payee, has been held to be valid, as a note payable to bearer. But in these and in all similar cases, the instrument either shows formally upon its face to whom it is payable, or gives the power of appointing to whom it shall be paid, to a designated person, .or is payable to bearer. And the rule is laid down by Bayley to be, that “where the bill or note is payable otherwise than to the bearer, it must show who is to be the payee,” and “if no person is named as payee, the instrument is not a bill or note.” Bayley on Bills, 29, 30. And further, that “uncertainty as to the person to whom the payment shall be made, will prevent the instrument from being a bill or note,” unless it be payable to bearer. Ib.

A case has been cited by counsel, in 13 Greor-R., where a note payable to the administrator of a specified estate, was held a valid note, and we think with good reason, because, by the designation, a person was mentioned who could be readily ascertained.

But we have been able to. find no case which would sanction the instrument in this case, as a valid promissory note. It shows the name of no person to whom it is to be paid, nor can it be certainly fixed, from its terms, who is entitled to receive payment. “ The estate of Benjamin Thomas, deceased,” is neither a person, nor a body corporate or politic, nor do the terms point with legal certainty to any person. If they have reference to any person or persons interested in the estate of the deceased, it is wholly uncertain whether they were intended to apply to the administrator or 'to the distributees of the estate, or to the parties entitled to his real estate; and this uncertainty can only be explained by the introduction of parol evidence as to tbe intention of the makers, wbicb would not be admissible.

We think, therefore, that the court acted properly in extending the demurrer to the declaration, and in giving judgment for the defendants.

The judgment is affirmed.