Imágenes de páginas
PDF
EPUB

fectly valid. The practical disadvantage of typewritten and penciled instruments and signatures is their easy obliteration and alteration. Printed and stamped signatures, while not open to this objection, are more difficult to prove than a signature in the handwriting of the signer.

§ 10. Note must contain a promise. The ordinary form of promissory note reads “I promise to pay,” etc. and thus complies in express terms with this requirement. But such formal accuracy is not necessary; any words of equivalent import are sufficient. Thus the following document was held a promissory note:

“NATHANIEL O. WINSLOW, Cr.
By labor 1634 days at $4 per day, $67.00
Good to bearer.

(Sgd) Wm. Vannah."

The words “Good to bearer”' impute a promise as clearly as “I promise to pay to bearer” (6).

But the following instruments, “I owe my father 470 pounds(7);Due Currier and Barker, $17.14" (8); and I. O. U., E. A. Gay, the sum of $17 5/100 for value received(9); were held not to be promissory notes. The reason is that they were simply admissions or acknowledgment of indebtedness. Now admitting the existence of a debt is a very different thing from a promise to pay it; therefore, it can not be said that a written admission imports a promise. It is true in the first case, for example, if the admission were true, that the father could

(6) Hussey v. Winslow, 59 Me. 170.
(7) Israel v. Israel, 1 Campbell, 499.
(8) Currier v. Lockwood, 40 Conn. 349.
(9) Gay v. Rooke, 151 Mass. 115.

recover the 470 pounds from his son, but this is because he owed the debt, and not because he had promised to pay it.

§ 11. Same (continued). A written acknowledgment of a debt, however, may be coupled with other expressions from which a promise to pay the debt acknowledged may be spelled out. The following time check is a promissory note (10):

“Time Check, No. 189. $98.65. General Managers' Office, Hawkeye Gold Mining Co. Pluma, So. Dak., June 10, 1893. Due W. C. Robinson the sum of ninety-eight dollars and sixty-five cents ($98.65), payable at this office, on the 20th day of June, 1893, to him or order. David Hunter, General Manager, by L. A. Fell. W. C. Robin

[ocr errors]

And so is an instrument in this form: “Due John Allen, $94.91 on demand” (11). The reasoning upon which these decisions is based, and upon which they are distinguished from the case of a bare admission of a debt, is that the words “payable at this office on the 20th day of June” in the former, and "on demand" in the latter, indicate an intention to pay the debt at the time specified. “I. O. U. $20 payable tomorrow,” or “Due A $20 to be paid on demand,” or even “Due A $20, on demand,” are susceptible of the construction “Due A $20, which I promise to pay tomorrow,” or “on demand.'

Upon the same principle certificates of deposit issued

(10) Schmitz v. Mining Co., 8 So. D. 544.
(11) Smith v. Allen, 5 Day 337 (Conn.).

by banks may be promissory notes. This was held by the United States Supreme Court when the following certificate was before it (12):

“No. 959, Mississippi Union Bank.

Jackson, (Miss.) Feb. 8, 1840. I hereby certify that Hugh Short has deposited in this bank, payable twelve months from 1st May, 1839, with 5 per cent. interest till due, fifteen hundred dollars, for the use of Henry Miller, and payable only to his order upon the return of this certificate, $1,500.

William P. Grayson, Cashier."

§ 12. Bill of exchange must contain an order. This requirement is also expressly met in the regular form of bill or draft, which in imperative terms directs the person upon whom the bill is drawn to “Pay to A” the sum specified. But the language employed is not always unambiguous, and it sometimes is difficult to determine whether the instrument is simply a request to pay, or a mere authority to collect money due, either of which is the antithesis of an order or imperative direction, i. e., a direction which implies in its terms a right to command and a duty to obey.

“Dear Sir.- We hereby authorize you to pay on our account to the order of W. G., etc.” is not a bill but a mere authorization to the debtor to pay W. G. and constitutes him agent to collect (13). “Please to send 10 pounds by bearer, as I am so ill I cannot wait on you” (14) is clearly

(12) Miller v. Austin, 13 Howard, 218.
(13) Hamilton v. Spottiswoode, 4 Exchequer, 200.
(14) King v. Ellor, 1 Leach Crown Law, 323.

simply a request and therefore not a bill. But words of politeness do not deprive an order of its imperative quality. Thus, “Please pay A” is a common phrase in bills, and even the following has been held a bill of exchange: “Mr. Nelson will much oblige Mr. Webb by paying J. Ruff, or order, 20 guineas on his account” (15). Judged by these tests there is no doubt that the following statement of account and memorandum, delivered by a contractor to his subcontractor to enable the latter to collect his account from the owner, who was indebted to the contractor, was properly held to be a bill (16):

“New York, 16th Dec., 1847. Messrs. Smith and Woglom,

To C. H. Hoyt, Dr. To tin roof, 86 ft. x 3712 ft. 3225 ft. at 71/20......$241.87 112 of 3 in, leader

11.20 85 ft. of copper gutter, 4s 6d ..

47.81

$300.88

Williamsburg, Dec. 16, 1847. Mr. J. Lynch:

Please pay the above bill, being the amount for tinning your houses on South Sixth St., and charge the same to our account,

And much oblige yours,

Smith & Woglom."

(15) Ruff v. Webb, 1 Espinasse, 129.
(16) Hoyt v. Lynch, 2 Sanf. Sup. Ct. 328.

$13. Promise or order must be unconditional. An instrument which carries on its face an obligation, upon which the money will not be payable unless some specified event happens, would be of little value in business before the condition happened, because it might never happen, and even after the happening of the condition, the fact the promise had thus become absolute would not be disclosed on the paper. In consequence, although such an instrument witnesses a perfectly valid contract, it is not one which the custom of merchants clothed with the quality of negotiability.

For example, Coleman gave Blake a paper, on which was written the ordinary form of a promissory note signed by Coleman, but on the back was written: “L. S. Blake, or bearer is not to ask or expect payment of said note until his, Coleman's old mill is sold for a fair price.” This indorsement turned what otherwise would have been a promissory note into a common law contract (17). For the same reason, the following order, which made a condition of its payment the production of the bank book, was held not a bill of exchange (18):

“Dover, Oct. 27, 1893. $120. Piscataquis Savings Bank.

Pay James Lawler, or order, one hundred and twenty dollars, and charge to my account on book No. – Witness

J. N. Cushing. The bank book of the depositor must accompany this order."

(17) Blake v. Coleman, 22 Wis. 396. (18) White v. Cushing, 88 Me. 239.

« AnteriorContinuar »