* * *

of exchange because all the parties to it in the character of drawers, payees, and drawees are not different persons. A bill drawn by a person payable to his own order has always been deemed to be a bill of exchange in the commercial sense of the phrase, and it would not cease to be such a bill if it should be indorsed by the drawer payable to the drawee. Where the bill is negotiable, and contains a drawer, a payee, and a drawee, it is, in a commercial sense, a bill of exchange, although one or more of the parties shall fill a double character." The English Bills of Exchange Act provides that a bill may be drawn payable to, or to the order of, the drawee. 45

(5) Instrument payable to joint payees.- An instrument may be payable to two or more payees jointly. Where a note is so made payable to two or more persons, it imports prima facie a joint and coequal interest in the two payees; but this does not preclude proof of the true transaction, and that the consideration moved from them in separate and unequal amounts and values. 46 In such a case, a transfer of the instrument can only be made by the joint indorsement of all the payees, unless they are in fact partners.17

(6) Instrument payable to one or some of several payees.It is provided in the Negotiable Instruments Law that an instrument may be drawn to the order of one or some of several payees.48 If this provision means that an instrument payable in the alternative to one or some of several payees is negotiable, it would seem to have changed the rule, for it has generally been held that instruments payable in the alternative to one person or another are not negotiable, because the payee is not certain.49 It is not clearly apparent that the framers of the Negotiable Instruments Law intended to modify the rule as to alternative payments; it seems better to construe the statute as intending to cover a promise to pay to several persons whose interests are common, or to any one or more of them. If this be the correct interpretation, there has been no change made in the law, since the rule has always been that where a promise to pay is made to several persons who may be identified one with the other as having a common interest in

the transaction, or to any one of them as representing them all, there is in such case no uncertainty as to the payee, and the instrument is, therefore, negotiable."

50

(7) Instrument payable to holder of an office for the time being. A negotiable instrument may be drawn payable to the order of the holder of an office for the time being.51 This provision of the law was intended to declare the general rule that where an instrument was payable to a person holding a position of a representative character that he may be regarded as the payee of the instrument in behalf of all the persons whom he represents.52 (8) Payee to be indicated with reasonable certainty. There is no necessity that the payee should be actually named, provided he can be ascertained definitely. The important point is that there should be no uncertainty about the existence of the person who can give a full release and receipt for the instrument. The general rule is that it is sufficient if there is in fact a payee who is so designated that he can be ascertained.53 It is impossible to lay

50. Blanckenhagen v. Blundell, 2 B. & Ald. (Eng.) 217.

66

In the case of Atlantic Mut. Fire Ins. Co. v. Young, 38 N. H. 451, it was held Payable in alternative to one of that a promise contained in a deposit several payees. In the case of Holmes note given by the insured to a mutual v. Jacques, L. R., 1 Q. B. (Eng.) fire insurance company upon the issu376, the note in controversy was pay- ing of a policy to him "to pay to the able to "the trustees of etc., or company, or to their treasurer," the "their treasurer for the time being." assessment which may be ordered by The court, per Blackburn, J., said: "I the directors, is not a promise in the think the true construction of this in- alternative to one of two distinct parstrument is that it merely means: I ties. The court said: The promise promise to pay to the trustees, or their is to the company to pay them, and agent for the time being (the latter the insertion of the words or their being what is implied by law), and I treasurer," merely introduces a stipugive notice that the treasurer is such lation that the payment agreed to be agent. Thus carrying out the intima- made to them shall be considered as tion of Bayley, J., in Blanckenhagen v. made to them, so as to fulfil the conBlundell, 2 B. & Ald. (Eng.) 217, that tract, if made to the person who may if there had been any community of then be their treasurer.” See also interest stated between the payees so as Gaytes v. Hibbard, Fed. Cas. 5,287, 5 in any respect to identify the one Biss. 99. with the other, it is possible that an action might have been maintained on the note."

51. Neg. Inst. L. (N. Y.), § 27 (6). 52. Davis v. Garr, 6 N. Y. 124, in which case a written instrument by which D. promises to pay money to W. D. and M., “trustees of the Apalachicola Land Company, or their successors in office, or order," was held to

In the case of Noxen v. Smith, 127 Mass. 485, the note sued upon was payable to the trustees of the Methodist Episcopal church or their collector, and it was held that the rule making be a promissory note. notes nonnegotiable which are pay- 53. Adams v. King, 16 Ill. 169, 61 able in the alternative did not apply Am. Dec. 64. The court, in this case, in this instance, because the two per- said: "The general rule in relation sons named were not strangers to each to bills of exchange and promissory other, but one was clearly the agent notes requires that the person to of the other to collect the money. whom they are made payable shall be

$ 40.

CERTAINTY AS TO PAYEE.

229

down any fixed rule to determine the degree of certainty required in designating the payee; reference should be made to the different cases to find expressions which have been held as sufficient or insufficient to designate the payee. A note payable to the estate of a deceased person has been held to be sufficiently certain as to the payee to render it valid.54 But there are a number of other

specified; but this may be done with- plication of the doctrine that the perout inserting the name; for that is son to whom a note is payable must certain which may be rendered certain; be clearly expressed. It is an equally and if the payee be so certainly desig- general rule, that it is sufficient if there nated or referred to as to be easily is in fact a payee, who is so designated ascertainable by allegations and proofs, that he can be ascertained. See also Notes, § 36.) the promise will be valid.” Blackman v. Layman, 63 Ala. 547, 35 Am. Rep. 57; Turner v. Eldridge, 6 Ala. 821; Moody v. Threlkeld, 13 Ga. 55; Smith v. Bridges, 1 Ill. 18; Chenot v. Lefevre, 8 Ill. 637; Greenhow v. Boyle, 7 Blackf. (Ind.) 56; Smith v. Marland, 59 Iowa, 645, 13 N. W. 852; Gordon v. Anderson, 83 Iowa, 224, 49 N. W. 86, 12 L. R. A. 483; Brown v. Gilman, 13 Mass. 158.

An instrument made payable to the "St. Bt. Juda, owners or order," is a good promissory note, as it can be shown who are the owners of the steamboat Juda, and the note would be payable to them, or their order. Moors v. Anderson, 8 Ind. 18.

54. Instrument payable to estate. The case of Shaw v. Smith, 150 Mass. 166, 22 N. E. 887, 6 L. R. A. 348, contains the best discussion of this doctrine, although, in some respects, it goes further than many other cases. The instrument sued upon was as follows:

(Story on "The illustrations of the manner in which this rule has been applied are Thus, written promises numerous. have been held to be valid notes or bills of exchange, though made payable to bearer (Grant v. Vaughan, 3 Burr. [Eng.] 1516); or to persons designated simply by their office, without naming them, e. g., the treasurer of the First Parish in H. or his successor in said office (Buck v. Merrick, 8 Allen [Mass.], 123); the trustees of a particular church (Noxon v. Smith, 127 Mass. 485; Holmes v. Jacques, L. R., 1 Q. B. [Eng.] 376); the manager of the Provincial Bank of England (Robertson v. Sheward, 1 Man. & G. of [Eng.] 511); the treasurer-general of treasury Portugal the Royal (Soares v. Glyn, 8 Q. B. [Eng.] 24); the executors of the late W. B. (Hamilton v. Aston, 1 C. & K. [Eng.] 679); the administrators of a particular estate (Moody v. Threlkeld, 13 Ga. 55; Adams v. King, 16 Ill. 169); the trustees acting under the will of the late Mr. W. B. (Megginson v. Harper, 2 Cr. & M. [Eng.] 322). Also to the heirs of a particular person, even though that person was living at the time (Bacon v. Fitch, 1 Root [Conn.], 181; Lockwood v. Jessup, 9 Conn. 272; Cox v. Beltzhoover, 11 Miss. 142); to a business name adopted by the person in interest (Bryant v. Eastman, 7 Cush. [Mass.] 111; Brown v. "The defendant contends that the Parker, 7 Allen [Mass.], 337); and instrument sued on is not a promissory to the steamboat Juda and owners note, for want of a sufficiently definite (Moore v. Anderson, 8 Ind. 18). So, a payee, and he cites two decisions which bill which was indorsed to a person sustain him in this connection. (Lyon who was already deceased was held v. Marshall, 11 Barb. 241; Tittle v. valid in the hands of his legal representatives. (Murray v. East India Co., Thomas, 30 Miss. 122.) "But this would be too strict an ap- 5 B. & Ald. [Eng.] 204.) More literally

"$126.00.

"BELCHERTOWN, July 19, 1873.
"For value received, I promise to
pay F. P. Bridgman's estate, or order,
one hundred and twenty-six dollars on
demand, with interest annually.

"(Signed) EUGENE BRIDGMAN."
"Witness: A. BRIDGMAN."

On this question the court said as
follows:

cases holding that an instrument made payable to the estate of a person is not good as a promissory note, on the ground that the terms of such instrument do not point with legal certainty to any person as payee, and that it is impossible to ascertain whether the instrument was intended to apply to the administrator or to the distributees of the estate, or to the parties entitled to his real estate; and this uncertainty can only be explained by the introduction of parol evidence as to the intention of the makers, which would be inadmissible.55 But where a note is made payable to the estate of a deceased person, it is evidence of a debt which the executor may recover as assets of the estate. 56 And a promissory note which is payable to the executor of the estate of a deceased person is valid.57 A comparatively recent New York decision is to the effect that a promissory note, to the order of the estate of a certain person, was in substance a note payable to a fictitious payee, and if negotiated by the maker was payable to the bearer.58 It will not destroy the validity of a bill or note if it be made payable to a payee who is not designated by the name of a person.'

directly opposed to the two decisions relied on by the defendant, are Peltier v. Babillion, (45 Mich. 384, 8 N. W. 99), where a written promise payable to the order of J. V. Mehling estate was held to be a good note, and McKinney v. Harter, (7 Blackf. [Ind.] 385), which was substantially similar. See also Storm v. Stirling, (3 El. & Bl. [Eng.] 832; s. c., sub nom. Cowie v. Stirling, 6 El. & Bl. [Eng.] 333); Yates v. Nash, 8 C. B. N. S. [Eng.] 581), where a promise to the officer for the time being of a society was held too indefinite, though the general rule as applied in other cases was recognized.

"In the case before us, the promise was to pay to F. B. Bridgman's estate, or order. He was dead, and administrators had been appointed. There could be no doubt that the promise was intended to be one of which the administrators could avail themselves. They were in existence, and were ascertainable. If the administrators of his estate had been made the payees, without naming them, there can be no shadow of question that it would have been sufficient. It savors of too much refinement to hold that the instrument was not a valid promissory

59

note for want of a sufficiently definite payee."

But in the case of Stern v. Eichberg, 83 Ill. App. 442, it was held that a promissory note payable to the estate of a deceased person is valid, not only as a promissory note but also as evidence of an indebtedness; and where the payee named in such note was "the estate of Samuel Eichberg," it was held to afford a designation by which the payee can be ascertained.

55. Tittle v. Thomas, 30 Miss. 122, 64 Am. Dec. 154; Wayman v. Torreyson, 4 Nev. 124; Lyon v. Marshall, 11 Barb. (N. Y.) 241.

56. Hendricks v. Thornton, 45 Ala. 299; McKinney v. Harter, 7 Blackf. (Ind.) 385.

57. Moody v. Threlkald, 13 Ga. 55; Adams v. King, 16 Ill. 169, 61 Am. Dec. 64.

58. Lewisohn v. Kent, 87 Hun (N. Y.), 257, 33 N. Y. Supp. 826.

59. Moore v. Anderson, 8 Ind. 18. See also Hart v. Taylor, 70 Miss. 655, 12 South. 553, in which a written obligation reciting that the maker is bound to "Millsap College or its assigns if it shall be permanently located at Jackson." was held to be a negotiable promissory note.

d. When payable to bearer.-(1) Statutory provision. The Negotiable Instruments Law contains the following provision: "An instrument is payable to bearer:

"1. When it is expressed to be so payable; or

66

2. When it is payable to a person named therein or bearer; or "3. When it is payable to the order of a fictitious or nonexist"ing person, and such fact was known to the person making it so payable; or

66

"4. When the name of the payee does not purport to be the 66 name of any person; or

"5. When the only or last indorsement is an indorsement in "blank.” 60

The English Bills of Exchange Act provides that "a bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an indorsement in blank.61 The word "bearer" means the person in possession of the bill or note which is payable to bearer."2

(2) Instrument made expressly payable to bearer. It is the ordinary practice in commercial transactions to expressly provide for the payment of a negotiable instrument to bearer, if such is the desire. Probably any other word having the same meaning as bearer would be equally efficacious. Thus the word "holder" has been held synonymous with and equivalent to the word "bearer." 63

(3) Instrument payable to order of fictitious person.― Subdivision 3 of the above section of the Negotiable Instruments Law is a substitute for a somewhat similar provision contained in the statutes of a number of the States. For instance in New York, it was provided that a note made payable to the order of a fictitious. person shall, if negotiated by the maker, have the same effect and be of the same validity as against the maker and all persons hav

60. Neg. Inst. L. (N. Y.), § 28. For same section in statutes of other States see Appendix.

61. English Bills of Exchange Act, 1882, § 8 (3).

62. Neg. Inst. L. (N. Y.), § 2.

of precisely the same import; as if the note were made payable to A. B., or to any one to whom he may deliver it, or to any one who might hold the same by delivery. In both cases the bearer would be sufficiently meant and 63. "Holder " means "bearer."- designated, although the word was not Putnam v. Crymes, 1 McMullen (S. used. If it was the intention of the C.), 9, 6 Am. Dec. 250, in which maker to make it payable to any one case the court said: "The word who acquires possession by delivery, 'bearer' is usually inserted in a nego- he has no right to complain when it tiable note, transferable by delivery. is presented to him without the writBut without it the maker of the note ten transfer. 'Holder' is a word of can make it transferable by delivery, the same import as 'bearer,' and both either by circulation, or using a word may acquire title by lawful delivery,