Osborne v. Fulton

Holman, J. Declaration in debt, stating that Osborne, on the 6th of July, 1821, by his writing obligatory acknowledged himself to be bound unto Fulton in the sum of 137 dollars, without stating when it became due. The defendant prayed oyer, and demurred. The Circuit Court oyer ruled the demurrer, and gave judgment for the plaintiff. The note, read on oyer, is dated the 6th of July, 1821, and payable on the 1st of November next ensuing. It is for the sum of 137 dollars, with these words written across the end — “The amount of this note to be paid in notes on the bank of Kentucky, or the branch bank of Madison at Lawreneeburgh." Two questions here-present themselves for an answer: First, 'is this note sufficiently described in the declaration? Secondly, Will'an action of debt lie on it? in answer to the first, it is evident that the description of the note is insufficient in two particulars: First, the note is set forth without a day of payment, and, as thus described, must be considered as a note payable immediately (1); when, in fact, it was not due for nearly four months. This is a fatal variance, See 2 Phill. Ev. 5, in note; and Sheehy v. Mandeville, 7 Cranch, 208, and Wilmot v. Monson, 4 Day, 114, there cited (2). Secondly, "the note is set forth as if payable in money, such being its legal operation as thus described; when, by the writing on the end of it, which must be presumed to have been made with the note, and must be taken as a part of the contract, it was to be paid in notes on the bank of Kentucky, or the branch bank of Madison At Lawrenceburgh. This variance is also fatal. See 2 Phill. Ev, 4, 5; and Kearney v. King, 2 Barn. & Ald. 301, there cited. This view of the note will answer the second question: fox, as the note is for the .payment of 137 dollars, in notes on the [235] bank of Kentucky, or the branch bank of Madison at Lawrenceburgh, an action of debt will not lie upon it. See Hedges v. Gray, and Wilson v. Hickson, decided at this term. Covenant is the proper action; and the value of the bank notes, a fact that should be found by a jury. Dewey for the appellant. Nelson, for the appellee. Per Curiam. The judgment is reversed, with costs. Footnotes [(1)] Acc. Farquhar v. Morris, 7 T. R. 120. — Thompson v. Ketcham, 8 Johns. R. 189. — Sehree v. Dorr, 9 Wheat. 561. So a note for a certain sum, “which I promise to pay as soon as 1 can,” is payable immediately. Kincaid v. Higgins, 1 Bibb, 396. [(2)] In a suit on a promissory note, the declaration set forth the note as payable on demand, and the note offered in evidence was payable 54 days after date. The evidence was rejected. Page v. The Bank of Alexandria, 7 Wheat. 35. So, in an action on the assignment of a note, the declaration did not state the note to be payable at any particular time, but the record of the suit which, was offered to show due diligence against the maker, was founded on a note payable 12 months after dale: Held, that the variance was fatal. Sehree v. Dorr, 9 Wheat. 558, 561.