forged or signed to an instrument without his consent, must be made with full knowledge of the facts affecting his rights.39 The mere fact that the person whose name has been so signed does not disaffirm it within a reasonable time after it is brought to his attention does not amount to a ratification." And it has been held that where one whose name has been forged to a note remains silent when the note is shown to him and he is asked to pay it, such silence does not estop him from denying the signature, unless the holder has been led to change his position, or otherwise act on it to his injury." If a person promise to pay a note to which his name had been signed without his authority, it is an adoption of the act of the unauthorized signer, and equivalent, in law, to an antecedent authority to execute the note. And when a person's tion void. The opinion fully recognizes the proposition, that where acts or admissions alter the conditions of the holder of the paper, the party is estopped, but it is necessary that such a case should be made. It is further held that cases of ratification are those where the act was pretended to have been done for, or under the authority of, the party sought to be charged, which cannot be in the case of a forgery. A distinction is also made between civil acts, which may be made good by subsequent recognition, and a criminal offense, which is not capable of ratification." See post in chapter on Alteration and Forgery where this subject is again discussed. 42 21 Pac. 1084; Fletcher v. Dysart, 48 Ky. 413; Walters v. Munroe, 17 Md. 150, 77 Am. Dec. 328; Dietz v. City Nat. Bank, 42 Neb. 584, 60 N. W. 896; Hazleton v. Batchelder, 44 N. H. 40; Craighead v. Peterson, 72 N. Y. 279, 28 Am. Rep. 150; Jones v. Hamlet, 34 Tenn. 256; Bell v. Wandby, 4 Wash. 743, 31 Pac. 18. 40. Reubin v. Cohen, 48 Cal. 545. Neglect to repudiate the signature of one's name to a check for more than two years after being informed of the transaction, though it is evidence tending to show that the signature was authorized, does not amount to a ratification of the act if it was unauthorized. De Land v. Dixon Nat. Bank, 111 Ill. 323. as In the case of Woodruff v. Monroe, 33 Md. 147, it is held that: "If, in 41. Goetz v. Goldbaum, 37 Pac. an action against an indorser of a (Cal.) 646. The agent of the payee promissory note by the bona fide hold- of a note stated to the defendant, ers thereof, it be shown that the in- whose name appeared thereon dorsement was not genuine, and the maker, that he had deposited her note defendant did not ratify or sanction it with the plaintiff, and she thereupon prior to the maturity of the note, and told him that she had signed no such its transfer to the plaintiff, he is not note, but did nothing further about, liable. But if he adopted the note it, and paid no attention to the plainprior to its maturity, and by such tiff's notice that the note was due. adoption assisted in its negotiation, Held, that her silence did not amount he would be estopped from setting up the forgery in a suit by a bona fide holder. But any admissions by the defendant, made subsequently to the maturity of the note, would not be evidence that he had authorized the indorsement of his name thereon." 39. Hefner v. Vandolah, 62 Ill. 483, 14 Am. Rep. 160; Gleason v. Henry, 71 Ill. 109; McDonough v. Heyman, 38 Mich. 334; King v. Rhea, 13 Colo. 69, to a ratification of her unauthorized signature. California Bank v. Sayre, 85 Cal. 102, 24 Pac. 713. See also Corser v. Paul, 21 N. H. 24, 77 Am. Dec. 753. 42. Bigelow v. Denison, 23 Vt. 564; Devendorf v. West Virginia Oil and Oil Land Co., 17 W. Va. 135. In an action on a promissory note against a maker whose signature was forged, it appeared that the defendant signature to a note is shown to him and he is asked if it is genuine, and after examining it acknowledges the signature to be genuine he is estopped from afterward denying the genuineness of the signature. 43 § 35. Promise or order to pay. 44 a. In general.—It is a well-recognized rule of law that a bill must contain an order as contradistinguished from a simple request, and a note an absolute promise, though the mere fact that words of civility are used will not affect the negotiability of the instrument. There is an analogy between bills and notes which may well be kept in mind in dealing with the question of the promise or order as affecting negotiability. This analogy will appear from the following comparison. When the payee transfers a note to an indorsee, the analogy is complete. For example we have a promissory note as follows: "$100. ALBANY, N. Y., January 1, 1903. On demand I promise to pay to A., or order, the sum of one hundred dollars, value received. (Indorsed) "Pay to the order of C." (Signed) A. (Signed.) The following is an ordinary bill of exchange or draft: 66 B." "ALBANY, N. Y., January 1, 1903. 'Thirty days after sight dred dollars, value received, To "B." Troy, N. Y. had said to the plaintiff that the note was "all right," and that if the plaintiff would hold on" he would pay him, thereby inducing the plaintiff to omit to collect the note of the other maker, who afterward became insolvent and absconded. It was held that the defendant was estopped from denying the execution of the note. Hefner v. Dawson, 63 Ill. 403, 14 Am. Rep. 123; Hefner v. Vandolah, 62 Ill. 483, 14 Am. Rep. 106. "Mr. J. LYNCH: A subsequent unconditional promise "WILLIAMSBURGH, December 16, 1847. to pay, by one in whose name a note had been executed without authority, "Please pay the above bill, being is not, as matter of law, a ratification, the amount for tinning your house on but evidence from which a ratification South Sixth street, and charge the may be inferred. Commerce Bank v. same to our account, and much oblige Bernero, 17 Mo. App. 313. See also Traders' Nat. Bank v. Rogers, 167 "Yours, 66 SMITH & WOGLOM." From this example it is seen that when the note is made payable to an indorsee by the payee, it is an order from the payee upon the maker for the payment of money to the indorsee. The indorser payee is the drawer, the maker of the note is the acceptor, and the indorsee is the payee. This analogy may be of use in determining the different kinds of negotiable instruments. 44a b. Promise to pay.— To constitute an instrument a promissory note words must be contained therein which import an unconditional promise to pay. No particular form of expression is essential. 45 No matter how informal the instrument may be, it is a good note, provided it contain an agreement to pay to a person named in it, or to bearer, or to some person described, in terms that admit of no misapplication.46 It is not necessary that the word "promise " be used, although words of equivalent import are required, the fair construction of which would be tantamount to a promise, express or implied." 47 The court said that this was a bill of 44a. See Commercial Bank v. Hughes, 17 Wend. (N. Y.) 98; Newman v. Frost, 52 N. Y. 422, 426. 45. Parsons on Notes and Bills, p. 24; Pepoon v. Stagg, 1 Nott & McC. (S. C.) 102; Woodfolk v. Leslie, 2 Nott & McC. (S. C.) 585; Hitchcock v. Cloutier, 7 Vt. 22; Hunt v. Devine, 37 Ill. 137. 66 46. Edwards on Bills and Notes, 132; United States v. White, 2 Hill (N. Y.), 59. See also Hickok v. Bunting, 67 App. Div. (N. Y.) 560, 73 N. Y. Supp. 967, where an instrument reciting: Having been the cause of a money loss to my friend H., I have given her $3,000. I hold this amount in trust for her, and one year after date or thereafter on demand I promise to pay to the order of H., her heirs or assigns, $3,000, and interest," and signed by the obligor, was held to be a promissory note. 47. Fleming v. Burge, 6 Ala. 373; "Be Rice's Admr. v. Rice, 68 Ala. 216. In Words of promise required. In the case of Cummings v. Gassett, 19 Vt. 308, an instrument read as follows: "LUDLOW, VT., Dec. 11, 1833. "For value received of Cummings & Manning or order, thirty dollars and eighty-three cents on demand and interest annually. (Signed) "LEVI GASSETT." Below the signature was a memorandum in these words: "To be paid in one year from date." The court held that such an instrument would be sufficient evidence under a count declaring upon it as a promissory note in com A due bill or an I O U is generally held to be a negotiable promissory note, provided there are words of negotiability at mon form, and said: "But, if it were count at that time with the estate of necessary, it seems to me it would not Warden, and it was given effect acbe very difficult to supply the omission cordingly. Bowles v. Lambert, 54 Ill. in this note by intendment. There is 237. but one way in which it can be supplied; no two persons would think differently in regard to that. In such cases, it seems to me, that courts should, if they do not choose to stultify themselves in the estimation of all common-sense men, supply the defect; and I have no doubt we should in this case, if necessary." An instrument in the following form: "Due A. B. $34.63, for goods purchased of him while at P., to be paid as soon as collected from my accounts at P.," is a promissory note, not a mere conditional obligation to pay. Ubsdell v. Cunningham, 22 Mo. 124. "Good for," etc., when promissory note. In the case of Weston v. My ers, 33 Ill. 424, tickets or printed instruments in the following form: "Good for fifty cents. H. C. Myers, Sut.," which were indorsed with the initials of the defendant, "H. C. M.," were held to be negotiable promissory notes. See also Franklin v. March, 6 N. H. 364, 25 Am. Dec. 462, in which case an instrument reading, "Oct. 19, 1830. Good to Robert Cochran, or order, for thirty dollars, borrowed money. Joseph W. March," was held to be a promissory note. See also Hussey v. Winslow, 59 Me. 170. But in an early Massachusetts case (Brown v. Gilman, 13 Mass. 158), an instrument, as follows: "May, 1810. Good for one hundred and twenty-six dollars on demand. Gilman & Hoyt,' was held not to be a negotiable promissory note. Writing intended as evidence of debt. An action was brought upon a writing as follows: "I owe the estate of Zenas Warden, $190.15. May 13, 1863." It appeared that the party whose name was signed thereto had been in the habit of giving similar papers to those who had accounts with him, as statements merely of their accounts, and not as promissory notes, and, as there was no payee named, it was inferred the writing was intended, not as a promissory note, but only as a statement of the balance of his ac Intent to give.- A writing was as follows: "May 14, 1836. This is to show that I allow to give Willet James Two hundred and fifty dollars, to be paid in two years after date, as witness my hand and seal. Thomas James. [SEAL.]" It was held that it was not a promissory note. It simply expresses a present intention to give Willet James two hundred and fifty dollars within two years after its date. Harmon v. James, 7 Ind. 263. See also Johnston v. Griest, 85 Ind. 503. Certificate issued by school district. A certificate of the following tenor: "This is to certify that there is due from Johnson Township to A. & B., or order, one hundred dollars, for school furniture, etc., payable on, etc., with interest, etc., for value received, etc., payable at the First National Bank," etc. (Signed) "W. H. F., trustee Johnson Township," is a promissory note of Johnson School Township. Johnson School Township v. Citizens' Bank, 81 Ind. 515. Receipt for money deposited.— In the case of Long v. Straus, 107 Ind. 94, 6 N. E. 123, 57 Am. Rep. 87, an instrument reading, Received of Joseph S. Long sixteen hundred dollars, on deposit, in national currency. (Signed) Straus Bros.," was held to be a written contract importing a promise to pay the amount specified on the demand of the depositor. The court said: "The language used creates a contract, and the law implies, as part of the contract, that on reasonable demand the depositor is entitled to receive back that which belongs to him. The deposit of money is a transaction well known to the law, and it is one out of which well-defined legal rights emerge; chief among these rights is that of the depositor to receive his own again, and a correlative of this right is the implied promise of the person who receives money on deposit to return it to the depositor." And again, on a reargument of this case (107 Ind. 104, 7 N. E. 763), the court said: "If the instrument we have tached to it and it is absolutely payable. Unless it is absolutely payable, it is not a note of any kind, either negotiable or under consideration had been written out in full, although payable on demand, it would be a promissory note, and it seems, under the principle we have stated, that it is a promissory note, and as such negotiable, for it is well settled that no precise form of words is necessary to constitute a promissory note, as any form that expresses a promise, although not in direct terms, will be sufficient." But see Smiley v. Fry, 100 N. Y. 262, 3 N. E. 186; Gutch v. Fosdyck, 48 N. J. Eq. 353, 22 Atl. 590. Promise to pay debt of another. An instrument in the following form: "SCHENECTADY, N. Y., Aug. 11, 1897. "We, the undersigned, John Krank and John L. Mynderse, hereby agree to pay David Bradt, Becker & Co. a bill of two hundred and sixty-five dollars and fifty cents ($265.50) against Church & Jones, between now and Tuesday next. "(Signed) JOHN KRANK, "JOHN L. MYNDERSE." was held not to be a promissory note. Bradt v. Krank, 164 N. Y. 515, 58 N. E. 657, 79 Am. St. Rep. 662. 66 (Ky.), 341, an instrument in the following form: $136. I have borrowed from Aaron Myers one hundred and thirty-six dollars, which money was loaned to me by the said Myers, as agent for Hugh Dugan, for the benefit of my father, Joseph Harrow. (Signed) Thomas S. Harrow, Joseph Harrow," was held a promissory note. The court said: "The word 'borrow' imports in itself a promise to pay as strongly as the word 'due;' and the written acknowledgment that a party has borrowed money, is as clearly a note for the direct payment of money, as is the written acknowledgment that money is due, upon which it has been decided that a petition may be maintained." See also Woodfolk v. Leslie, 2 Nott & McC. (S. C.) 585. "Promise to renew."-The followback of a promissory note, and signed ing memorandum, written upon the in the presence of an attesting witness, "I hereby renew the within note," is a witnessed promissory note_within the Statute of Limitations. Daggett v. Daggett, 124 Mass. 149. But, in the case of Gray v. Bowden, 23 Pick. (Mass.) 282, it was held that a memorandum on the back of a promissory note, in these words, "I acknowledge the within note to be just and due," signed by the maker and attested by a witness, was not a promissory note, for the reason that 'there are no express promissory words. It is not, therefore, a note in writing promising to pay money, or a promissory note. It is merely an acknowledgment, from which a promise might be inferred, so as to take the old note out of the statute, which would extend it six years, but not an attested note." See also Commonwealth Ins. Co. v. Whitney, 1 Metc. (Mass.) 21. Certificate as to payment.-A written obligation in the following language: "This is to certify that I am to pay to J. M. the sum of three thousand dollars on the first day of February, 1884," etc., constitutes an unconditional promise to pay money, and is, therefore, a promissory note. Meyer v. Weil, 37 La. Ann. 160. The court said in this case: "The word 'promise' is not sacramental in a promissory note. No particular form is required by law. It is enough if the note contain a legal promise for the certain payment of a specified sum, and that the maker and payee be designated with sufficient certainty. The language used in this case is precise, Indorsement on back of note.-A positive, peremptory. It is of at least note was indorsed in the following equivalent force and similar meaning. form: "I hereby assume and agree It is rather emphatic. It certifies that to pay the principal of the within the maker is to pay, that is, must and note," signed by the indorser and deshall pay. It clearly meets all legal livered to the payee named in the body exigencies in that respect, and makes of the note. It was held that the inthe instrument an unconditional prom- dorsement constituted a promissory ise to pay." note, being the open promise in writing of the indorser to pay absolutely and at all events the sum specified in Words "I have borrowed," etc.-In the case of Harrow v. Dugan, 6 Dana |