Smith v. Marland

Day, J. We need not determine whether the matters set up in the answer would avail against the bonco fide holder for value of a negotiable promissory note. In our opinion the instrument sued upon in this case is. not a negotiable promissory note. The qualities essential to a negotiable promissory note are that it shall possess certainity as to the payor the payee, the amount, the time of payment and the place of payment. 1 Parsons on Notes and Bills, page 30. Respecting the certainty as to the amount the following language is employed: “There should be entire certainty and precision as to the amount to be paid. The reason for this is especially obvious; for if the note is to represent money effectually, there must be no mistake as to the amount of money of which it thus takes the place and performs the office. On this point, therefore, the cases are quite stringent. The sum must be stated definitely and must not even be connected with any indefinite or uncertain sum, nor are we aware of any trustworthy cases in which the rule, Id cerium est quod cerium reddipotest, is permitted to supply the want of an express certainty on this j>oint, as it seems to be in relation to some other certainties required in promissory notes.” 1 Parson on Notes and Bills, p. 37. Now whilst the amount to be paid is stated with certainty in one part of the instrument [650] sued upon, it is rendered uncertain by the provisions wbicli follow. The instrument contains a provision that the payee may at any time he deems himself insecure, even before the maturity of the instrument, take possession of the property in consideration of ■which the instrument was executed, and sell it on five days’ notice. If this privilege should be exercised it is clear that the amount to be recovered on the instrument would be diminished by tbe amount for which the property was sold. As the instrument contains an express provision whereby tbe amount to be recovered upon it may be rendered uncertain, it cannot be said that it is certain as to amount. The instrument lacks the most important requisite of a negotiable promissory note. The matters alleged in tbe answer constitute a complete defense between the immediate parties to the instrument, and are equally available against a bona fide holder. The demurrer was properly overruled. Affirmed.