16

14 Ala. App. 511, 71 So. 82; Whitlock v. Auburn Lumber Co., 145 N. C. 120, 58 S. E. 909, 12 L. R. A. (N. S.) 1214. But see Worden Grocer Co., v. Blanding, 101 Mich. 254, 126 N. W, 212, which followed the Massachusetts case (decided before the enactment of the Negotiable Instruments Law) of Sloan v. McCarty, 134 Mass. 245, holding such a note non-negotiable. See also Fleming v. Sherwood, 24 N. Dak. 144, 139 N. W. 101, 43 L. R. A. (N. S.) 945; Reynolds v. Vint, 73 Oreg. 528, 144 Pac. 526; Western Farquhar Mach. Co. v. Burnett, 82 Oreg. 174, 161 Pac. 384.

Such an

15 See National Sav. Bank v. Cable, 73 Conn. 568, 48 Atl. 428. order is in effect an assignment. See supra, § 425.

16 See State Bank v. Bilstad, 162 Ia. 433, 136 N. W. 204, 49 L. R. A. (N. S.) 132; Des Moines Savings Bank v. Arthur, 163 Ia. 205, 143 N. W. 556, Ann. Cas. 1916 C. 498; Fisher v. O'Hanlon, 93 Neb. 529, 141 N. W. 157; Empire Nat. Bank v. High Grade Oil Ref. Co., 260 Pa. 255, 103 Atl. 602; Bright v. Offield, 81 Wash. 442, 143 Pac. 159. But cf. Pierce v. Talbot, 213 Mass. 330, 100 N. E. 553, where the court failed to give effect to what seems the natural meaning of the statute.

A note payable in five years and adding "due if ranch is sold or mortgaged" is not rendered non-negotiable

by these words, which are not selfexecuting, but give the holder an option. Nickell v. Bradshaw (Oreg.), 183 Pac. 12.

In speaking of provisions in notes providing for their extension at maturity, the court in Cedar Rapids Nat. Bank v. Weber, 180 Iowa, 966, 164 N. W. 233, 235, L. R. A. 1918 A. 432, after citing numerous decisions, said: "We gather from the great weight of authority that, where the provision of the note amounts to an agreement by the parties to the note for an extension to an indefinite time, the negotiability of the instrument is thereby destroyed. The language of the note in suit contains a provision by which the maker, payee, sureties, indorsers, and guarantors consent to an extension of time of payment. This language is binding upon the payee, the holder, and the maker. If the maker demands an extension of time, by the terms of the instrument the payee has consented thereto. The failure of the parties to fix a time to which the payment might be extended renders the same uncertain. The language used is not susceptible of any other interpretation. Certainty is required by the Negotiable Instruments Law, and by the exigencies and usages of commercial business. While the rule adopted by the Supreme Court of New Mexico, and possibly in other jurisdictions, although none of the other cases cited supra so

some

hold, is contra, we believe that the language and spirit of the statute can be applied in the case at bar only by holding the instruments in question uncertain as to the time of payment and non-negotiable.

The conflict in the holdings of the several courts in the several cases cited is more apparent than real. In most of them in which the note was held negotiable it was quite apparent that the language used was not sufficient to make out a binding obligation upon the payee or holder to grant an extension."

17 Thus a note payable a fixed time after death of a named person may be negotiable. McClenathan v. Davis,

149 Ill. App. 654; Keeler v. Hiles' Est. (Neb.), 172 N. W. 363. Otherwise of a note payable a fixed time after an event not certain to happer. Rice v. Rice, 43 N. Y. App. Div. 458, 60 N. Y. S. 97. It has been held by two courts that a note containing a stipulation that the indorsers thereon consent to an extension of time of maturity prevents negotiability. Union Stock Yards Nat. Bank v. Bolan, 14 Ida. 87, 93 Pac. 508, 125 Am. St. Rep. 146; Roseville State Bank v. Heslet, 84 Kans. 315, 33 L. R. A. (N. S.) 738. The contrary decisions, however, seem clearly sound, Longmont Nat. Bank v. Loukonen, 53 Col. 489, 127 Pac. 947, Ann. Cas. 1914 B. 208; Stitzel v. Miller, 157 Ill. App. 390; Farmer v. Bank of Graettinger, 130 Ia. 469, 107 N. W. 170; First Nat. Bank v. Buttery, 17 N. D. 326, 116 N. W. 341, 16 L. R. A. (N. S.) 878; DeGroat v. Focht, 37 Okl. 267, 131 Pac. 172; since the

stipulation does not of itself change the date of maturity in the instrument.

A stipulation permitting the holder to enter judgment whether a note is due or not, has been held to make uncertain its time of maturity. Volk v. Shoemaker, 229 Pa. 407, 78 Atl. 933; First Nat. Bank v. Russell, 124 Tenn. 618, 139 S. W. 734, Ann. Cas. 1913 A. 203; Wisconsin Yearly Meeting #. Babler, 115 Wis. 289, 91 N. W. 678. See also Iowa Nat. Bank v. Carter, 144 Ia. 715, 123 N. W. 237 (cf. Des Moines Sav. Bank v. Arthur, 163 la. 205, 143 N. W. 556, Ann. Cas. 1916 C. 498); Holliday State Bank v. Hoffman, 85 Kan. 71, 116 Pac. 239, 35 L. R. A. (N. S.) 390, Ann. Cas. 1912 D. 1; Reynolds v. Vint, 73 Oreg. 528, 144 Pac. 526; Western Farquhar Mach. Co. v. Burnett, 82 Oreg. 174, 161 Pac. 384; Puget Sound State Bank v. Washington Paving Co., 94 Wash. 504, 162 Pac. 870. Even such a note, however, seems within the broad language of the Statute since it is payable "before a fixed. . . future time," and apart from the implied prohibition in Sec. 5 (2) of a stipulation allowing confession of judgment before maturity, might be thought to be negotiable. See Smith v. Nelson Land &c. Co., 212 Fed. 56, 128 C. C. A. 512; Schmidt . Pegg, 172 Mich. 159, 137 N. W. 524; Bright v. Offield, 81 Wash. 442, 143 Pac. 159.

18 See Berenson v. London, etc., Ins. Co., 201 Mass. 172, 87 N. E. 687; Tisdale Lumber Co. v. Piquet, 153 N. Y. App. Div. 266, 137 N. Y. S. 1021. In the Wisconsin Act instead of the last paragraph, the following

SEAL;

PARTICU

(4) Bears a seal; or

23 Bank of Houston v. Day, 145 Mo. App. 410, 122 S. W. 756; Church v. Stevens, 56 N. Y. Misc. 572, 107 N. Y. S. 310.

24 In the Illinois Act the following words are inserted at the beginning of subsection (5): "Is payable in current funds: or," and that Act also does not contain the final paragraph of the section. Prior to the passage of the Negotiable Instruments Law there was considerable litigation on the question whether an instrument payable in currency or in current funds was negotiable. Some courts held that currency or current funds meant the money or legal tender that was current, and therefore, that the instrument was negotiable. Bull v. Bank of Kasson, 123 U. S. 105, 31 L. Ed. 97, 8 Sup. Ct. 62, Hatch v. First Nat. Bank, 94 Me. 348, 47 Atl. 908; Keith v. Jones, 9 Johns. 120. Other courts held that currency or current funds meant, what was current as money (that is, used as such) whether, in fact, it was money or

a contrary holding, for the latter meaning seems the true sense of the words, and under that meaning if it is requisite that a negotiable instrument shall be payable in money, an instrument payable in currency or current funds is not negotiable. Wright v. Hart's Adm., 44 Pa. 454. It is probable that the Negotiable Instruments Law was meant to settle this controversy when it provided that an instrument is negotiable though it designates a particular kind of current money in which payment is to be made. But it cannot be said that those words do settle the controversy. Undoubtedly a note payable in a particular kind of current money, e. g.,.gold coin, is negotiable; Chrysler v. Renois, 43 N. Y. 209; but the words "current money" do not seem the equivalent of " 'currency or current funds," if the latter words are understood to mean what is used as money whether it is really money or not. The Supreme Court of Iowa, indeed, following earlier authorities, has held that a check payable in current funds is not payable in money and is therefore not negotiable. Dille v. White, 132 Ia. 327, 109 N. W. 909,