Martin v. City and County of San Francisco

Cope, J. delivered the opinion of the Court Field, C. J. concurring. This is an action to recover a large sum of money alleged to be due for labor and materials, expended in making improvements upon certain streets in the city of San Francisco. The plaintiff relies, for a recovery, upon various warrants drawn by the Mayor and Controller upon the Treasurer of the city, to pay for these improvements. These warrants are similar to those sued on in Argenti v. City of San Francisco, and according to the decision in that case, no action can be maintained upon them. We see no reason for changing our opinion in this respect. We regard the warrants in question as ineffectual for any purpose, except, perhaps, as evidence in an action founded upon the consideration for which they were given. It is contended that they are analogous, in legal effect, to bills of exchange drawn by an individual upon himself, and may be treated as promissory notes; but the answer is, that they are drawn upon a particular fund, and their payment is made to depend upon the sufficiency of this fund. An instrument, to be regarded either as a bill of exchange or promissory note, must be payable absolutely; its payment cannot be made to depend upon a contingency. The warrants in this case are not drawn in favor of the plaintiff. The suit is brought by him as assignee, and he seeks to recover without any other proof of indebtedness than the evidence of the warrants themselves. It nowhere appears that there has been an assignment of the original indebtedness. Under these circumstances, the plaintiff is not entitled to recover, and the judgment of the Court below must be affirmed. Ordered accordingly.