Goss v. Barker & Haight

The opinion of the court was delivered by Redfield, J. The only- question much urged, in the argument of this case, is, whether the contract declared upon is a bill of exchange, and may be declared upon as such. We feel very certain, that upon this point the case is clearly with the defendant. A contract, although payable in money, if its obligation depend upon any contingency, even as to the amount ultimately due, cannot be regarded either as a promissory note, or bill, so as to be strictly negotiable. This principle is too familiar, and too elementary, to require to be substantiated by authority. If any were needed, those cited at the bar are ample, and all the books upon this subject abound in them. But we do not regard the present declaration as coming withip the rule. This declaration sets forth the entire transaction, the original indebtedness of all parties, very much in detail, the drawing of the order, the conditional acceptance, the happening of the contingency, by which the acceptance became absolute, and then the formal assumpsit is raised. This is no more like a declaration upon a bill of exchange, than is every declaration in assumpsit. And it seems to us, that if the transaction will give an action in favor of the present plaintiff, this declaration is quite sufficient, either upon motion in arrest, or general demurrer. We do not well perceive, how it can be said, that any substantial fact is omitted. The consideration for the promise is certainly as full as it is in any [524] case of the promise to pay any debt to a third person, not originally due to him. And that such a consideration is sufficient is fully settled in Moar v. Wright, 1 Vt. 57; Hodges v. Eastman, 12 Vt. 358. But if the original indebtedness be a promissory note, this collateral promise does not attach to it, as such, but must be specially declared upon, as in the present case. Here the same thing is effected through what is commonly called, by the people of this state, “ an order,” which is a species of contract about as far removed from the inland bill of exchange of the common law, as are our cattle and grain contracts from promissory notes. The latter class of contracts, it has been held in this state, may be declared upon as promissory notes. Brooks v. Page, 1 D. Ch. 340. Dewey v. Washburn, 12 Vt. 580, The cases cited from the Massachusetts Reports seem to us fully to justify this action, in its present form. Perry v. Harrington, 2 Met. 368. Gibson v. Cooke, 20 Pick. 15. And the late English cases cited, or to which we have referred, raise no doubt whatever in regard to the perfect propriety of the declaration, both in form and substance. Crowfoot v. Gurney, 23 E. C. L. 309. Jones v. Simpson, 2 B. & C. 318. Dixon v. Hatfield, 2 Bing. 439, [9 E. C. L. 471.] Judgment affirmed.