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Sec. 4. An instrument is payable at a determinable future time, within the meaning of this act, which is expressed to be payable:
(1) At a fixed period after date or sight; or
(2) On or before a fixed or determinable future time specified therein; or
(3) On or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain.
$ 23. Promise or order must be to pay money. Thus, a written contract, “Two years from date for value received, I promise to pay J. S. King or bearer one ounce of gold,” is not a promissory note. Unminted gold is not money (41). For the same reason a promise to pay $2180 in bank checks is not a note (42). An instrument made in Michigan payable in Canada in Canada money is a promissory note (43), but an instrument made in New York and payable there in Canada money is not a promissory note (44). These two cases show that a bill or note may be made payable in the money of any country, but the money designated must be that of the country where the paper is payable. The reason for this rule lies in the definition of money. Money is legal tender, i. e., that which by law is tenderable for debts. While Canada money is legal tender in Canada, it certainly is not in New York. In New York it is a commodity. But a note payable in the United States, containing a promise to pay 10,000 francs
(41) Roberts v. Smith, 58 Vt. 492.
in the money of the United States, is negotiable. Although the amount payable is expressed in foreign money, the medium of payment is legal tender of the United States (45). Even if the instrument did not expressly provide for payment in United States money, the result should be the same, for, by implication, the instrument is payable in the legal tender of the country where it is payable. For example, a note containing a promise to pay 10,000 francs, payable in the United States, is by implication payable in money of the United States: “10,000 francs” is the measure of the amount payable, rather than an indication of the medium of payment (46). $ 24.
Current funds. A bill or note which indicates the medium of payment by any phrase which according to mercantile usage means money, is negotiable. Of such phrases those in most common use are “currency," and "current funds." For example, the following certificate of deposit is payable in money, and therefore is a promissory note (47):
“The 1st National Bank, Dexter, Me.,
Jan. 6, 1897. Olivia Hodge has deposited in this bank $560 payable in current funds to the order of herself on return of this certificate properly indorsed. Int. at 3% per annum if on deposit six months.
C. N. Sawyer, Cash.”
(45) Thompson v. Sloan, note 44, above.
(46) Thompson v. Sloan, note 44, above; Hogue v. Williamson, 85 Tex. 553.
(47) Hatch v. Bank, 94 Me. 348.
$ 25. Particular kind of money. The N. I. L. (48) provides that a bill or note may “designate a particular kind of current money in which payment is to be made.' This means simply that a particular kind of legal tender, such as gold eagles, or copper cents, may be prescribed as the medium of payment.
$ 26. Bill or note must order or promise payment of money only. A promise to pay A or order $100, and to deliver him or order a horse on Jan. 1 is not a note. Nor is a promise either to pay A or order $100, or to deliver a horse on Jan. 1, at the promisor's option, a promissory note. But a promise to pay A or order either $100, or, at his option, to deliver him a horse, is a promissory note. In the first case there is a promise to do something in addition to the payment of money. In the second, the promise to pay money is conditional upon the promisor's exercising his option. In the third, the promise to pay money is absolute, and, in case the holder elects to take money, the promisor is bound to deliver nothing in addition. An example of the third case is Hodges v. Shuler (49) where the court held the following instrument a promissory note:
“Rutland and Burlington Railroad Company. No. 253.
Boston, April 1, 1850. In four years from date, for value received, the Rutland and Burlington Railroad Company promises to pay in Boston, to Messrs. W. S. & D. W. Shuler, or order $1000, with interest thereon, payable semi-annually, as per in
(48) Sec. 6, subd. 5. (49) 22 N. Y. 114.
terest warrants hereto attached, as the same shall become due; or upon the surrender of this note, together with the interest warrants, not due, to the treasurer, at any time until six months of its maturity, he shall issue to the holder thereof ten shares in the capital stock in said company in exchange therefor, in which case interest shall be paid to the date to which a dividend of profits shall have been previously declared, the holder not being entitled to both interest and accruing profits during the same period.
T. Follett, President.
It seems clear that recitals in an instrument, that collateral security for it has been given and authorizing the sale of the collateral (50), or authorizing the entry of a judgment by default against the maker, in case of non-payment (51), or waiving the benefit of exemption laws (52), do not encroach upon the rule just stated, or any of the other rules we have discussed. The N. I. L. says:
Sec. 5. An instrument which contains an order or promise to do any act in addition to the payment of money is not negotiable. But the negotiable character of an instrument otherwise negotiable is not affected by a provision, which:
1. Authorizes the sale of collateral securities in case the instrument be not paid at maturity; or
2. Authorizes a confession of judgment if the instrument be not paid at maturity; or
(50) Valley Bank v. Crowell, 148 Pa. St. 284.
3. Waives the benefit of any law intended for the advantage or protection of the obligor; or
4. Gives the holder an election to require something to be done in lieu of payment of money.
But nothing in this section shall validate any provision or stipulation otherwise illegal.
$ 27. Certainty of parties: Requisite parties. It is impossible to conceive of a promissory note without a maker, i. e. a promisor, and a payee to whom the promise runs; or of a bill of exchange without a drawer who writes the order, a drawee to whom the order is directed, and a payee in whose favor it is drawn. A note presupposes two parties and a bill three. However, the formal validity of a bill or note is not affected by the fact that one person is designated upon its face in more than one of the several capacities. Nothing is more common in business than making a note payable to the maker's order. In such a case, of course, the payee could not bring an action against himself as maker. But, in respect of form, the note is valid, and, when it is transferred to a second person, the instrument becomes an enforceable obligation. So, in the case of a bill drawn payable to the drawer. Although no obligation arises on the instrument in favor of the payee against himself as drawer, upon a transfer of the instrument to a third person the drawer becomes liable as such to the transferee. In like manner the same person may be designated as drawee and payee in the instrument. Here again the drawee's acceptance, or promise to pay, obviously puts him under no duty to himself as payee. But,