So, in a written bargain for buying goods, a promise to pay the seller the price in a limited time is not a note, but a mere memorandum of the terms of the bargain.1 But mere expressions of gratitude, where there is a promise, or other needless addition, will not deprive the instrument of its character as a bill or note.2

SECTION III.

CERTAINTY AS TO THE FACT OF PAYMENT.

41. In the third place, the fact of payment must be certain. The instrument must be payable unconditionally, and at all events, in order to be negotiable. If the order or promise be payable provided terms mentioned are complied with; as, for instance, that a railroad be built to a certain point by a certain time, it is not a bill or note; and likewise if payable provided a certain act be not done; or that a certain receipt be produced; or another person shall not previously pay; or provided a certain ship shall arrive; or provided the maker shall be able; or provided the maker shall live a certain time. Sometimes a condition of time is expressed by the word "when," as "when A. shall marry "; 10"when a certain suit is determined"; "1 "when ";1 a certain sale is made "; 12 or "certain divisions declared "; 13

11

Ellis v. Mason, 7 Dowling, 598.

'Ellis v. Ellis, Gow., 216. *Blackman v. Lehman, 63 Ala., 547; Eldred v. Malloy, 2 Col., 320; Chitty on Bills, 134; Kingston v. Long, reported in Bailey on Bills, (6 ed.), 16; Ames on B. & N., vol. I, 31.

Appleby v. Beddolph, 8 Mod., 363; Chitty, Jr., on Bills, 5, 246; sometimes cited as Appleby v. Biddle.

'Mason v. Metcalf, 8 Baxter, 440.

Roberts v. Peake, 1 Burr., 323.

Coolidge v. Ruggles, 15 Mass. R., 387; Palmer v. Pratt, 2 Bing., 185.

* Ex parte Tootle, 4 Vesey, 372; Salinas v. Wright, 11 Tex., 572.

'Braham v. Bubb, Chitty on Bills (13 ed.), *135, 136.

10 Pearson v. Garrett, 4 Mod., 242; Beardsley v. Baldwin, Stra., 1157. "Shelton v. Bruce, 9 Yerger, 24.

12 De Forest v. Frary, 6 Cow., 151; Hill v. Halford, 2 B. & P., 413. 13 Brooks v. Hargreaves, 21 Mich., 255.

"when a certain amount is collected";1 or "when the es

tate of M. is settled up"; of coal by brig A." So, if able subject to this policy"; tract; it is not negotiable.

2

4

"after arrival and discharge it be expressed to be "pay

or subject to a certain conAnd so if expressed "as per

agreement,' or "given as collateral security with an agreement."7 But the words, "as per memorandum of agreement," were not considered to render the promise conditional in an English case. In all these cases the contingency implied deprives the instrument of its charac ter as a bill or note, as the events named may never hap pen. If payable in instalments, no time for the payment of the instalments being mentioned, it is not a promissory note. In Illinois, where the promise was to pay a railroad company or order, a certain sum, in such instalments, and at such times as the directors of the payee company might assess or require, it was held negotiable, and in effect pay able on demand, or in instalments on demand.10

42. In England, it has been held that an order for a certain sum "payable ninety days after sight or when realized," was not a bill, as the latter alternative made it pay able upon a contingency," but this is not the view which prevails in such cases in the United States.

$43. Authorities in the United States.-In the United States, if the time must certainly come, although the particular day is not mentioned in the note, it is regarded as negotiable, as the fact of payment is then certain. Thus,

'Corbett v. State of Georgia, 24 Ga., 287.

2

Husband v. Epling, 81 Ill., 172 (1876).

Grant v. Wood, 12 Gray, 220.

American Exchange Bank v. Blanchard, 7 Allen, 332. But a mere note of

the number of the policy for which the note was given, would not vitiate its

negotiability. Union Ins. Co. v. Greenleaf, 64 Me., 123; see § 797.

where the note ran, "I promise to pay A. B., or bearer, $75 one year from date, with interest annually, and if there is not enough realized by good management in one year, to have more time to pay, in the manufacture of the plaster bed on Stearns' land," it was held negotiable, Pierpont, C. J., saying that the only uncertainty was as to the length of time to be given, and "this uncertainty the law makes certain by giving him a reasonable time thereafter (the time prescribed) to make the payment." So, where the note ran, "to be paid as soon as collected from my accounts at P.," it was held that the phrase was not intended to make the debt conditional, but only to prescribe that a reasonable time be allowed for collection of the accounts. So, where the note was to pay "by 20th of May, or when he com pletes the building according to contract," it was held that the 20th of May fixed the ultimate day when it should fall due. So, where the promise was to pay "against the 19th of December, or when the house John Mayfield has undertaken to build for me is completed," the like decision was made. So a note payable on or before a certain day; for, as said in such a case by Cooley, J.: "The legal rights of the holder are clear and certain; the note is due at a time fixed, and it is not due before. True, the maker may pay sooner if he shall choose, but this option if exercised would be a payment in advance of the legal liability to pay, and nothing more. Notes like this are common in commercial transactions, and we are not aware that their negotiability is ever questioned in business dealings. It ought not to be questioned for the sake of any distinction. that does not rest upon sound reason."

8

1Capron v. Capron, 44 Vt., 412 (1872).

Ubsdell v. Cunningham, 22 Mo., 124 (1855).

Stevens v. Blount, 7 Mass., 240 (1810). Goodloe v. Taylor, 3 Hawks, 458. 'Mattison v. Marks, 31 Mich., 421; Jordan v. Tate, 19 Ohio N. S., 586.

Mattison v. Marks, 31 Mich., 421 (1875); Helmer v. Krolick, 36 Mich., 373 (1877). See post, § 46. To same effect, Smith v. Ellis, 29 Maine, 422, note payable as soon and as fast as the money could be collected; and, if not collected, in four years.

§ 44. Other cases have arisen illustrative of these views. A note payable on demand after date, "when convenient," has been held payable absolutely in a reasonable time;1 and so a note payable "as soon as I can.' So a note payable in six months, "or as soon as I can with due diligence make the money out of said patent right "; a note payable in nine months, "or as A.'s horse earns the money in the cavalry service"; a note payable twelve months after date, "or sooner if made out of a certain sale," have been each held valid, negotiable notes, payable absolutely at the termination of the time expressed, and earlier, provided the alternative event transpired. A note payable "from the avails of logs bought of M. M., when there is a sale made ";" or "when I sell my place where I now live,” have been held in Maine payable absolutely after a reasonable time."

§ 45. So, where the note was to pay "as soon as realized," to which was added, "to be paid in the course of the season now coming," Shaw, C. J., said the undertaking to pay was absolute, and that "whatever time may be understood by the coming season,' whether harvest-time or the coming year, it must come by mere lapse of time, and that must be the ultimate limit of the time of payment."8 So, where the certificate is payable "on the return of this certificate," it is negotiable, because that merely requires, as in the case of any note, the return of the evidence of the debt; but if there be added, "and the return of my guar

'Works v. Hershey, 35 Iowa, 340; Lewis v. Tipton, 10 Ohio N. S., 88. See post, § 88.

3

170.

Kincard v. Higgins, 1 Bibb., 396.

Palmer v. Hummer, 10 Kansas, 464; contra, Hubbard v. Mosely, 11 Gray,

'Gardner v. Barger, 4 Heiskell, 669.

'Ernst v. Steckman, 74 Penn. St., 13. 85 Ill., 523; Walker v. Woollen, 54 Ind., Noll v. Smith, 64 Ind., 511.

Sears v. Wright, 24 Me., 278. * Cota v. Buck, 7 Metc., 588 (1844).

To same effect see Cidne v. Chidester, 164; Woollen v. Ulrich, 64 Ind., 120;

"Crooker v. Holmes, 65 Me., 195.

anty of a certain note," it would engraft a collateral condition which would defeat the negotiability of the instru ment.1

The American decisions quoted seem to us salutary and correct. It has been held by the United States Supreme Court that a note payable "as soon as the crop can be sold, or the money raised from any other source," is not a promissory note.2

§ 45a. In Massachusetts, it is considered essential to the negotiability of the note that it be payable at a definite time, or at a time that can be made definite at the election of the holder. And accordingly that an instrument given with a mortgage, promising to pay a certain sum in a year or a half from date, "or sooner, at the option of the mortgagor, with interest at a certain rate during the term of the mortgage," was not a negotiable note. And this view has been approved in Missouri, where corporate bonds provided that "the company reserve the right to pay the same at any time by adding to the principal a sum equal to twenty per cent. thereof." This latter decision seems clearly right, as the amount payable was not certain. But if a certain, or reasonably definite, time be fixed when the liability to pay occurs, thus marking the limit of the currency of the note and the period of its maturity, the fact that it may be taken up in advance ought not to impair its character as a negotiable note, and we have already given what seems to us the better opinion, as expressed by Judge Cooley, in reference to instruments so payable.5

§ 46. If payable when, or so many days after, “A. shall come of age," the instrument would not be a bill or note, as A. might die a minor, and the fact that he actually at

1

1 Smilie v. Stevens, 39 Vt., 316; Blood v. Northrup, 1 Kansas, 29.

* Nunez v. Dautel, 19 Wall., 560.

3

* Stults v. Silva, 119 Mass., 137; Way v. Smith, 111 Mass., 523.

'Chouteau v. Allen, 70 Mo., 339.

5

Ante, § 43.

VOL. I.-4

6

Kelley v. Hemmingway, 13 Ill., 604.