Musselman v. Oakes

Catón, 0. J. The declaration in this case was upon an instrument purporting to be a promissory note, payable to “ Olive Eletcher or R. H. Oakes,” in an action brought by Oakes. The declaration was demurred to, the demurrer overruled, and judgment rendered in favor of the plaintiff below. This was erroneous. The instrument sued on was payable in the alternative to one of two persons, and for that reason is not a promissory note, and could not be sued on as such. It is indispensable to a promissory note that it not only must be for a sum certain, and payable at a certain time, and without condition, but it must also be payable to a certain person, either specified on the face of the note, or who may be certainly identified by extrinsic proof, not inconsistent with the face of the note, as the assignee or bearer. Here the promise was to pay Eletcher or Oakes, but which, is uncertain; which of them had the right to receive the pay is not specified, and the legal right to the money is not vested in either. But this is a question of law too well settled by the books to require discussion, and I will only refer to Story on Promissory Notes, p. 40. This peculiarity of the note sued on was no doubt overlooked by the Circuit Court. The judgment must be reversed. Judgment reversed.