Leggett v. Jones

By the Court, Paine, J. This action was brought upon two instruments declared on as promissory notes, which were ' in the following form: “New YORK, May 30, 1858. “ Thirty days after date, I, the subscriber, of Beaver Dam, - copnty of Dodge, state of Wisconsin, promise to pay to the order of S. & T. Lawrence & Co., with exchange on New York, two hundred twenty-four dollars, at the Dodge County Bank, Beaver Dam. Value received. E. J. JONES.” [36] The complaint was demurred to as not stating facts sufficient to constitute a cause of action; and the plaintiff had judgment for the frivolousness of the demurrer, from which the defendant appeals. The only ground relied on for reversing the judgment is, that the question whether the instruments declared on were contracts for the payment .of money only within the meaning of sec. 68 of the Code, is sufficiently doubtful to relieve the demurrer of the character of frivolousness. It was suggested in the first place that they were not promissory notes, because payable with exchange, which is fluctuating; whereas the general rule is, that a promissory note must be for a sum fixed and certain. No case was cited sustaining this position, and upon the slight examination we have given it, no case has fallen under our observation where the question was ever raised or decided. Though we find cases, as in Gutacap vs. Woulwise, 2 McLean, 581, where such instruments have been treated as promissory notes without question. And, although it might seem to be a slight modification of the general rule before stated, we have no doubt such, instruments have everywhere been treated as commercial paper, both by the business world and by courts. But even if they were not, strictly speaking, promissory notes, there can be no question that they are contracts for the payment of money only. Upon this there is no room for argument or doubt, and therefore the demurrer was clearly frivolous. The judgment is affirmed with costs.