4 Denio 159 | N.Y. Sup. Ct. | 1847
The nonsuit was proper. A promissory note must be payable absolutely, and not upon any contingency as to time or event. (3 Kent, 5th ed. p. 74; Smith on Merc. Law. 113, 116; Story on Prom. Notes, §§ 1, 22 to 26;
This was not such an engagement, for although the promise was to make payments at certain specified times, the payments were to be made “ out of the net proceeds ” “ of ore to be raised and sold ” from a certain ore bed. Here was a contingency; the fund might turn out to be inadequate, in which case there would be no obligation to pay at any time. It was not a promise to pay “ absolutely and at all events,” as a promissory note always is.
New trial denied.
