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Thus the following for want of a drawee is not a bill (86):
“Montevallo, June 1, 1858. Ten months after date pay to the order of John S. Storrs, two thousand seven hundred and seventy-one and 62/100 dollars, value received, and charge to account of To........, Mobile, Ala.
D. E. Watrous."
The decision ought to be the same even if “To..... Mobile, Ala.,” had not appeared in the corner of the instrument, where the name of the drawee usually appears, and there are cases so holding (87). In Peto v. Reynolds, it was held that if a third person promised to pay such a defective bill, the promise of the third person made the instrument his promissory note. The promise was not an acceptance, because only a bill can be accepted; and the instrument was not a bill, because not addressed to a drawee.
$ 37. Same (continued). Notwithstanding these cases and the undoubted soundness of their reasoning, it is held that an order in the form of a bill of exchange, in which no drawee is designated, is in effect an order drawn on the drawer himself, and that he is liable on the instrument either as drawer of a bill or as maker of a promissory note (88). These decisions, however, are indefensible: the signer of the order is not liable as drawer of a bill, because there is no bill for want of a drawee; he is not liable as
(86) Watrous v. Halbrook, 39 Tex. 573.
(87) Forward v. Thompson, 12 U. C. Q. B. 103; Peto v. Reynolds, 9 Exchequer, 410.
(88) Almy v. Winslow, 126 Mass. 342; Funk v. Babbitt, 156 Ill. 408.
maker of a note, because the instrument contains no promise on his part to pay. These cases are based on a supposed analogy between a bill which is not addressed to a drawee, and an instrument in which the same person is designated as drawer and drawee. In the latter case the instrument is a valid bill in point of form, and, if the drawer refused to accept as drawee, he is liable as drawer because the instrument has been dishonored by non-acceptance (89). The case is like Commonwealth v. Butterick (90), and the instrument is in substance a note (91). But not only must the instrument be addressed to a drawee, in addition he must be named or designated with reasonable certainty. If the name of the drawee is not used, a trade name or any reasonably certain description may be. Thus the designation in the following bill is sufficient (92):
“Mobile, Nov. 16, 1867. Steamer C. W. Dorrance and owners will please pay W. B. Seawell & Co. twenty-two hundred dollars and charge the same to the account of yours, etc.
R. Swan. (Across the face) St'r Dorrance, per G. M. McConico, agent. (Indorsed) Pay R. Swan, or order, without recourse on us.
W. B. Seawell.
(89) Allen v. Assurance Co., 9 C. B. 574.
It is even held that writing an address on the instrument, which appears to be a designation of the place of payment rather than a description of the person to pay, may be interpreted as a mode of designating the person there residing, or doing business, as the drawee. Thus John Morson & Co. was held drawee of an instrument expressly naming no drawee, but addressed, “At Messrs. John Morson & Co." (93). The same interpretation was applied to instruments addressed “Payable at No. 1 Wilmot Street, Opposite the Lamb, Bethnal Green, London" (94); and “General Provision Warehouse," etc. (95).
$ 38. Negotiable instrument must be payable to order or bearer. Even if an instrument conforms to all of the foregoing requirements, it is not negotiable unless it is payable to order or to bearer.
$ 39. Order instruments.
“An instrument is payable to order when it is drawn payable to the order of a specified person or to him or his order” (96).
In the language just quoted, the N. I. L. thus fully recognizes the usual form of bills, notes, and checks payable to order, which are “Pay A, or order," and “Pay to the order of A.” But it is thought that the N. I. L. does not exclude the use of any other appropriate expressions indicating an intention to make the instrument payable to the payee's order. For example the following would seem to be a negotiable note: “On demand I promise to pay A
(93) Shuttleworth v. Stevens, 1 Campbell, 407.
$100. This note is negotiable. (Sgd) X” (97). Before the N. I. L. instruments payable to“A, or assigns” were held negotiable (98); but under the N. I. L. a contrary ruling has been made (99). The later decision seems preferable, apart from the N. I. L., because, as we shall see, an assignment is very different from an indorsement, and an assignee stands in a different position from an indorsee.
$ 40. Bearer instruments.
“The instrument is payable to bearer: (1) When it is expressed to be so payable; or (2) when it is payable to a person named therein or bearer; or...
(4) when the name of the payee does not purport to be the name of any person” (100).
Thus, by the words of the N. I. L. an instrument reading “Pay to bearer” or “Pay to A, or bearer" is negotiable. But a note payable to “the bearer, A” is not (101). In such a case the word “bearer” is used in addition to the payee's name further to describe and identify him. For a similar reason the following note was held payable to order and not to bearer (102):
“Due the bearer hereof, £3, 185, 10d., which I promise to pay to Abraham Thompson, or order, on demand, as witness my hand, this 22d 11th month, 1803.
(Signed) Jordan Cock."
(97) See Raymond v. Middleton, 29 Pa. St. 529; Stadler v. Bank, 22 Mont. 190.
(98) Brainerd v. R. R., 25 N. Y. 496.
The use of the word bearer is not necessary. Any word or phrase of equivalent significance is sufficient. Thus a note payable to “M. Owens, or holder” is payable to bearer (103).
$ 41. Same: Payee not a person. If the designation of the payee does not purport to designate an individual, the instrument is payable to bearer. Before the N. I. L., the cases in which this rule was applied were cases where the designation of the “impersonal payee” was followed by words of negotiability, i. e., order or bearer. For example, instruments payable to "bills payable, or order” (104), and to "the order of 1658” (105), were held payable to bearer. Checks payable to “the order of cash" are familiar examples of this kind of bearer paper. The reason given by the courts for the rule was that the words of negotiability show an intention that the paper shall be transferable, and, since indorsement by the “impersonal payee" is impossible, the instrument must be interpreted as payable to bearer and transferable without indorsement. If that is the reason for the rule, it would not be applicable where the words "order" or "bearer” were omitted. Though the language of the N. I. L. is broad enough to cover instruments in which words of negotiability do not appear, it is not believed that it was intended to make such instruments negotiable.
§ 42. Date of instrument. The only purpose of a date is to fix the time of payment. In an instrument payable on a specified day, e. g., Jan. 1, 1910, the date fulfills no
(103) Putnam v. Crymes, 1 McMullan's Law Rep. (S. C.) 9.