Sackett v. Palmer

By the Court, Johnson, J. The instrument on which the' action is brought is not a promissory note. It is payable ninety days after the happening of two events, one of which may never happen. The general rule is, that an instrument payable only in money, is not a promissory note, unless it is payable at all events, not depending on any contingency. Though if the event on which the instrument is to become payable, must inevitably happen, it is no objection that it is uncertain when it will happen ; nor is it of any importance how long the payment may be [182] in suspense; it will still be regarded as a promissory note. (Chit, on Bills, 8th Am. from 8th Bond. ed. 155,156.) It is not shown by the evidence how long the partnership was to continue by the agreement of the partners. It was certain, however, that there would at some time be a dissolution, by the death of one of the partners, if not otherwise. That event was sufficiently certain. But the settling of the books of the firm was an event which might never happen. It would not inevitably happen. It might, and probably would, after a dissolution, in due course of law. But that is not enough: if it might not happen, the instrument is not a promissory note. There is much less certainty here than in the case of Stevens v Blunt, (7 Mass. Rep. 240,) cited by the plaintiff’s counsel. The note in that case was payable to the payee or order, “ by the 20th of May, or when he completes the building according to contract.” The supreme court reversed the judgment of the common pleas, and held that the note was payable absolutely at a day certain. But I agree with the editor of the late edition, Mr. Band, in his note to this case, that the decision is clearly wrong. The promissor had the right of election to pay at either time specified. And the latter event might never take place. . • The instrument is an agreement, and not a promissory note; and it remains to be seen whether it is an agreement to answer for the debt, default or miscarriage of another. On its face it is a promise by the defendant to pay in behalf of J. F. Palmer. And on looking at the plaintiff’s evidence, it appears clearly that it was given for the express purpose of securing to the plaintiff’s assignors the payment of J. F. Palmer’s share of the partnership funds which the former had advanced for him, and whiph he had agreed to secure. The partnership agreement was made in March, 1854, and the instrument in question was not given until the 15th or 20th of May following, and after the partners had purchased their goods and commenced their partnership business. The assignor testifies expressly that he received the instrument as the security for J. F. Palmer’s half of the capital. There can be no doubt, therefore, that it is a promise to answer for the debt, which J. F. Palmer had incurred by the [183] advance of his half of the capital by his copartner. This being the character of the agreement, it is void by statute, inasmuch as it expresses no consideration. (2 R. S. 135.) It is perfectly immaterial what the consideration was in fact. The statute makes the agreement void if the consideration is not expressed in the writing. (Brewster v. Silence, 11 Barb. 144; S. C. 4 Selden, 207.) The evidence to show a consideration was irrelevant and immaterial. As it could not modify the statute, it could not help the agreement. The defendant is therefore entitled to judgment upon the case. [Monroe General Term, September 7, 1857. Johnson, Welles and T. R. Strong, Justices.]