Green v. Wilmington Trust Co.

Woolley, J. delivering the opinion of the court: Taking up the grounds for the motion in reverse order, it is apparent that the instrument sued upon is not such a one as is contemplated by the statute and therefore the matter of its probate does not require decision. In order to obtain judgment at the first term upon an affidavit of demand; the instrument of writing or claim sued upon must be for the unconditional payment of money and must contain a promise to pay that is unconditional in its nature. The instrument sued upon in this case is neither an unconditional promise nor a promise at all. It is a paper showing that Samuel D. Forbes admits that he has received from Harry E. Green the sum. of one thousand dollars to be used and employed in developing a certain business. The character of that business does not appear, the relation of these two parties in the business is not by the instrument disclosed, nor is the agreement with each other discoverable. There being no promise — certainly no unconditional promise — the court think that it is not such an instrument as is contemplated by the statute (Section 4, Chap. 106, Revised Code), and the motion is therefore allowed and judgment is refused, notwithstanding the affidavit of demand.