Majority
p. 159Worden vs. Dodge and another. moved to set aside the non-suit, and for a new trial.
Headnote
To make a written agreement to pay money a promissory note, it must be payable absolutely, and at all events.Therefore, a promise, in writing, to pay a sum of money owt of the net proceeds of ore to be raised, and, sold from a certain ore bed, is not a promissory note.
Assumpsit. On the trial the plaintiff gave in evidence an agreement, signed by the defendants, bearing date October 12, 1839, by which, for value received, they jointly and severally promised to pay to the plaintiff, by his name or order, §250, with interest, payable one half in two years and the other half in three years from the day of said agreement, “ out of the net proceeds, after paying the costs and expenses of ore to be raised and sold from the bed on the lot this day conveyed by Edward Madden to Edwin Dodge, which bed is to be opened and the ore disposed of as soon as conveniently may be.”
On reading the agreement the plaintiff rested, and the defendants moved for a nonsuit, as the plaintiff had not shown that the defendants had received enough from the ore to pay the note, nor had they shown any default or negligence on their part. The judge held that the plaintiff could not recover without proving that the defendants had received funds from the ore to enable them to pay, or had neglected to work the ore bed, and directed a nonsuit.
The plaintiff excepted.
A. B. James, for the plaintiff,
J. A. Spencer, for the defendants.
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; Smit h on Merc. Law. 113, 116; Story on Prom. Notes, §§ 1, 22 to 26;
p. 160
id. on Bills of Exch. §§ 46, 47; Chit. on Bills, 10th Amer. ed., p. 132 to 139.)
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.