case is a strong illustration of construction of words of courtesy as importing an order, but there was nothing in the language used that could not be explained on the score of courtesy. In the former case, on the other hand, the words "Please to let the bearer have" amounted to a mere request for a favor. As the latter case indicates, the fact that the order is expressed in polite words does not impair its mandatory effect. They may seem a request, yet be in fact an order. Indeed, the presumption is against their being a request, and the courts generally seek to construe the instrument as an order. And, in order to displace the construction that the instrument is a bill, it would seem to require that the language necessarily imported a favor, and was not meant as mere words of civility.22

21

Nor is mere authority to pay equivalent to an order. Thus, in HAMILTON v. SPOTTISWOODE,23 where the words were, "We hereby authorize you to pay on our account to the order of C.," Baron Parke said: "Here is only an option to pay or not; therefore this document is not a bill of exchange, but only a warranty, in case the defendant paid." And in Russell v. Powell,2 where J. M. assigned to the plaintiff a share in the estate of T. H., deceased, in the following instrument: "To the Executors of T. H., deceased-Gents: We do hereby authorize and require you to pay to Mr. Geo. Powell, or his order, £250, being the amount directed by the order of the 29th of July last [an order of court] to be paid to our order. J. M."—it was pointed out that the executors need or need not pay this sum, according to the condition of the estate in their hands, and therefore this was not a bill of exchange.

21 Wheatley v. Strobe, 12 Cal. 92, 73 Am. Dec. 522; Spurgin v. McPheeters, 42 Ind. 527.

22 Story, Bills (4th Ed.) § 33, note 6. See note 20, supra.

23 4 Exch. 200, Moore Cases Bills and Notes, 11. See, also, Robinett v. Bank of Willow Springs (Mo. App.) 163 S. W. 248. But see Nassano v. Toulumne County Bank, 20 Cal. App. 603, 130 Pac. 29; Sheets v. Coast Coal Co., 74 Wash. 327, 133 Pac. 433 (N. I. L.). 24 14 Mees. & W. 418.

PROMISE CONTAINED IN NOTE

16. A promise means any form of words from which an intent of the maker to pay can be construed.

Thus, "Good to C., or order, for $30 borrowed money," is interpreted to be a promise to pay and a negotiable promissory note.25 "One year after my death I hereby direct my executors to pay to J. H. * * $1,976.90, being the balance due him for cash advanced to my son,"

is a note, since the direction to the maker's executors to pay is as clear an expression of an intention to pay after death as a promise in terms.20 On the other hand, although an instrument contains in terms a promise to pay, another clause may negative the existence of an intention to pay, and preclude the interpretation of the writing as a promissory note.

25 Franklin v. March, 6 N. H. 364, 25 Am. Dec. 462; HUSSEY v. WINSLOW, 59 Me. 170, Moore Cases Bills and Notes, 13.

26 Hegeman v. Moon, 131 N. Y. 462, 30 N. E. 487. In Block v. Bell an instrument which ran, "On demand, I promise to pay A. B., or bearer, the sum of £15, for value received," was not signed at the foot, but was addressed in the margin to B., who wrote across it "Accepted," with his signature. It was held that the signature acted as an adoption of the promise, and that the instrument was a promissory note. 1 Moody & R. 149. An "acceptance" on a bill which is incomplete for want of the signature of the drawer makes the writing the promissory note of the person purporting to accept, since the writing expresses his intention to pay in accordance with the terms of the order. Drummond v. Drummond, Mor. Dic. 1445. Tevis v. Young, 1 Metc. (Ky.) 197, 71 Am. Dec. 474, contra. For the same reason the "acceptor" of a bill, which is incomplete for want of a drawee, constitutes the instrument his promissory note. PETO V. REYNOLDS, 9 Exch. 410, Moore Cases Bills and Notes, 67, semble; Wheeler v. Webster, 1 E. D. Smith (N. Y.) 1. A bill without a drawee, however, is not only incomplete as a bill, but for want of a promise cannot be interpreted as the note of the drawer. FORWARD V. THOMPSON, 12 U. C. Q. B. 103, Moore Cases Bills and Notes, 71. But the few cases in the United States on the point have enforced such a bill against the drawer upon a false analogy to an instrument in which the same person is both drawer and drawee. ALMY v. WINSLOW, 126 Mass. 342, Moore Cases Bills and Notes, 72; Funk v. Babbitt, 156 Ill. 408, 41 N. E. 166; Didato v. Coniglio, 50 Misc. Rep. 280, 100 N. Y. Supp. 466 (N. I. L.).

For example, a provision in an instrument otherwise in the form of a note, made by a corporation, that it should in no way be a charge upon the property of the maker, since it expressly deprives the paper of any effect in creating a legal obligation, prevented the writing as a whole from disclosing an intention to pay.27

A mere admission that a debt is due, which can be treated on a trial only as so much proof tending to establish a debt, is a very different thing from the promise required for a promissory note. A promissory note is a new obligation, and not simply evidence of an old obligation. An acknowledgment of indebtedness is evidence of an old obligation, but creates no new obligation. In such terms as “Due C., $100, value received;" "I O U $100;" "Borrowed, this day, of H. £100;" 28 "I acknowledge the within note to be just and due❞ 29 there is no liability that is new, assumed by the persons who signed these instruments. They are mere memoranda relating to a financial transaction, without any implication in words of a promise to pay.

But if a writing, in addition to an acknowledgment of indebtedness, contains words which can be interpreted as an expression of intention to pay the debt, the instrument may be a note, notwithstanding the informality in the expression of the promise. Thus, in the words, "I do acknowledge

27 Heflin Gold Mining Co. v. Hilton, 124 Ala. 365, 27 South. 301. Compare Hickok v. Bunting, 67 App. Div. 560, 73 N. Y. Supp. 967 (N. I. L.). See p. 54, note 60, infra.

28 Currier v. Lockwood, 40 Conn. 349, 16 Am. Rep. 40; GAY v. ROOKE, 151 Mass. 115, 23 N. E. 835, 7 L. R. A. 392, 21 Am. St. Rep. 434, Moore Cases Bills and Notes, 14; Fisher v. Leslie, 1 Esp. 426; Hyne v. Dewdney, 21 Law J. 278.

29 Gray v. Bowden, 23 Pick. (Mass.) 282. In Taylor v. Steele an action was brought on the following instrument: "Received from Mrs. Barbara Taylor the sum of £170, for value received, for which I promise to pay at the rate of £5 per cent. from the above date." The following opinion was delivered by Parke, B.: "This document is not a promissory note, because it contains no promise to pay the principal, but only the interest. I agree that an actual promise is not necessary if there are words in the instrument from which a promise to pay can be collected." 16 Mees. & W. (1847) 665. For the same reason, a certificate of deposit, which, after certifying to a

* * *

myself to be indebted to A. in £50, to be paid on demand," 30 the words "to be paid" were deemed a promise to pay; and the words, "I O U £20, to be paid on the 22d inst.," were held to import a promise for the same reason.31 Similarly, the more elliptical expression "Due A. $94, on demand," is a promise, because the sense requires the words "to be paid" to be supplied before "on demand." 32 The words "John Mason, 14th Feb., 1836, borrowed of Ann Mason, his sister, the sum of £14 in cash as per loan, in promise of payment of which I am truly thankful for, and shall never be forgotten by me, John Mason, your affectionate brother,"

credit of $5,000, continued, "This amount is left on deposit in this bank with the understanding that it is not to be withdrawn for two years, in consideration of which we hereby agree to pay I. straight interest at the rate of 7%," was held not a promissory note. YOUNG v. AMERICAN BANK, 44 Misc. Rep. 305, 89 N. Y. Supp. 913 (N. I. L.), Moore Cases Bills and Notes, 19.

30 Casborne v. Dutton, Selw. N. P. 329; STAGG v. PEPOON, 1 Nott & McC. (S. C.) 102, Moore Cases Bills and Notes, 18; Kimball v. Huntington, 10 Wend. (N. Y.) 675, 25 Am. Dec. 590.

31 Brooks v. Elkins, 2 Mees. & W. 74. The same interpretation of a bank's certificates of deposit, which acknowledge the receipt of a deposit of money and state that the sum deposited is "payable" to a designated person, results in their recognition as promissory notes. Miller v. Austen, 13 How. (U. S.) 218, 14 L. Ed. 119; HATCH v. FIRST NAT. BANK, 94 Me. 348, 47 Atl. 908, 80 Am. St. Rep. 401, Moore Cases Bills and Notes, 49; YOUNG v. AMERICAN BANK, 44 Misc. Rep. 308, 89 N. Y. Supp. 915 (N. I. L.), Moore Cases Bills and Notes, 21; Kavanagh v. Bank of America, 239 Ill. 404, 88 N. E. 171 (N. I. L.); Pryor v. Bank of America, 240 Ill. 100, 88 N. E. 288 (N. I. L.); Forrest v. Safety Banking & Trust Co. (C. C.) 174 Fed. 345 (N. I. L.); Dickey v. Adler, 143 Mo. App. 326, 127 S. W. 593 (N. I. L.). See Beckstrom v. Krone, 125 Ill. App. 376. If words of negotiability are added to an acknowledgment of indebtedness, e. g., "Due I. H. or order $100," the instrument, it seems, is a promissory note. It may be said that, since one cannot admit the existence of a common-law debt due to the order of the creditor, the words "or order" must be disregarded unless the instrument is interpreted as "Due I. H. $100, to be paid him or order." See Daniel, Neg. Inst. § 38; Sackett v. Spencer, 29 Barb. (N. Y.) 180; Russell v. Whipple, 2 Cow. (N. Y.) 536; Marrigan v. Page, 4 Humph. (Tenn.) 247; HUYCK v. MEADOR, 24 Ark. 191, Moore Cases Bills and Notes, 16.

32 Smith v. Allen, 5 Day (Conn.) 337. But see Purtel v. Morehead, 19 N. C. 239.

33

were held to constitute a promise, because they stated an advance of a loan of money, which the court thought was expressly, though clumsily, undertaken to be paid. The expressions of gratitude were treated as mere redundancy. In some jurisdictions there are, it is true, decisions holding that the word "due” imports a promise; but they are against the weight of authority, and not to be supported on principle. The true question before the court in construction should be the intention of the signer, to be gathered from any form of words in the instrument itself, to assume and pay as a distinctly new obligation.

35

CERTAINTY AS TO THE TERMS OF THE ORDER OR PROMISE

17. A bill or note must be payable absolutely and at a time certain.

EXCEPTION-If the instrument be payable upon the

happening of an event which is certain to happen, though the time when it will happen be uncertain, the instrument is negotiable.

18. The instrument must not be payable out of any particular fund.

DISTINCTION-Indicating to a drawee a source or fund

out of which he may be reimbursed is not charging payment upon a particular fund.

19. Instruments payable on demand, or at sight, or on a fixed period after demand or sight, or one in which no time is expressed, which is equivalent to an instrument payable on demand, are payable absolute

83 Ellis v. Mason, 7 Dowl. 598.

34 Anderson v. Pearce, 36 Ark. 293, 38 Am. Rep. 39; St. Louis, I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 545, 1 S. W. 704; Brady v. Chandler, 31 Mo. 28. By statute in some states due bills are put on the same footing as promissory notes. See, for example, Jacquin v. Warren, 40 Ill. 459; Lee v. Balcom, 9 Colo. 216, 11 Pac. 74.

35 See Daniel, Neg. Inst. §§ 35-40.