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In the original draft the word negotiable was used.
Signed. “When the law requires any writing to be signed by a party thereto, it shall not be deemed to be signed unless the signature be subscribed at the end of such writing." (Ky. Stats., Sec. 468).
The signature may be by mark unattested. Hinkle v. Dodge, 7 K. L. R. 526; Staples v. Bedford Loan & Deposit Bank, 98 Ky. 451, 33 S. W. 403, 17 K. L. R. 1035.
In the Staples case it is said “the words 'James His X Staples' do not constitute the signature of the Mark appellant, but the cross mark or sign is that signature.”
But it seems to have been held that an unat. tested signature by mark does not have the same evidential effect as a signature in writing. Chadwell's Adm'r. v. Chadwell, 98 Ky. 643, 33 S. W. 1118, 17 K. L. R. 1207; Vanover V. Murphy's Adm'r., 15 S. W. 61, 12 K. L. R. 733.
This applies even where there is no plea of non est factum. Chadwell's Adm'r, v. Chadwell supra.
“No person shall be bound as the surety of another by the act of an agent, unless the authority
of the agent is in writing, signed by the principal; or, if the principal does not write his name, then by his sign or mark made in the presence of at least one creditable attesting witness." (Kentucky Statute, Section 482). Ragan v. Chenault, 78 Ky. 546; Billington v. Commonwealth, 79 Ky. 400).
Section 482 applies to signature to power of attorney and not to signature to original obligation. See Staples case supra and Measles v. Morton, 93 Ky. 50, 18 S. W. 1028, 13 K. L. R. 958 It is not surety's signature even though made by his agent in his presence. Billington case supra.
Nor can such signature be ratified verbally. Ragan case supra. But such signature can be ratified by writing, Riggan v. Crain, 86 Ky. 249, 5 S. W. 561, 9 K. L. R. 528; or signer may be estopped to deny it, Rudd v. Matthews, 79 Ky. 479; Union Central Life Insurance Co. v. Johnson, 76 S. W. 335, 25 K. L. R. 682.
Money. “Bills, drafts or checks, payable in bank notes or currency, or other funds, wheresoever drawn or payable, shall be deemed negotiable, and treated in all respects as if drawn for money, except as to the value of the currency in which they are payable.” (Ky. Statutes 478).
It will be observed that this statute does not in terms include promissory notes. Whether or not this act which makes a promissory note ne
gotiable in the same manner as a bill of exchange would bring such notes within the perview of Section 478 is a question that has not been passed upon by the Court of Appeals.
For different kinds of money see Piner V. Clary, 17 B. Mon. 663; Morrison v. Tate, 1 Met. 569; Johnson v. Vickers, 1 Duv. 267; Smith's Adm'r. v. Dillon's Adm'r., 2 Duv. 153; Glass v. Pullen, 6 Bush 351.
An order in the form of a bill of exchange but payable in merchandise is not a bill of exchange. Coyle's Extx. v. Satterwhite's Adm'r., 4 T. B. Mon. 124; May v. Landsdown, 6 J. M. 165.
Payable to the order of a specified person or bearer. The use or nonuse of these words distinguishes a negotiable instrument from one which is merely assignable. In the case of Wettlaufer v. Baxter, 137 Ky. 362, 125 S. W. 741, it is said: "It will thus be seen that it was uniformly held that, in order to make a note or bill negotiable, the words 'to order' or 'to bearer' or equivalent words, must be used in the body of the note. It will be kept in mind, however, that the absence of these words does not affect the validity of a note or render it nontransferable or nonassignable. Their only effect is to make the instrument negotiable and thereby cut off defenses that the maker or either of the parties to the paper might
have and make against the holder in due course if the note was negotiable."
The words payable to order are synonymous with the words payable and negotiable. McCormack v. Clarkson, 7 Bush 519.
A note payable "to D. L. or order negotiable and payable at M. N. Bank” is a negotiable instrument. Alexander & Co. v. Hazelrigg, 123 Ky. 677, 97 S. W. 353.
See Jett v. Standafer, 143 Ky. 787, 137, S. W.513.
§ 2. Sum Payable Must Be Certain.“The sum payable is a sum certain within the meaning of this act, although it is to be paid:
(1) “With interest; or
(3) "By stated installments, with a provision that upon default of payment of any installment, the whole shall become due; or
(4) “With exchange, whether at a fixed rate or at the current rate; or
(5) "With costs of collection or an attorney's fee, in case payment shall not be made at maturity."
Installments. Robertson v. Commercial Security Co., 152 Ky. 336, 153 S. W. 450.
Attorney's Fee. While the provision in a note
providing for the collection of an attorney's fee does not render a note non-negotiable, yet in this State such a provision is deemed contrary to public policy and void. Thomasson v. Townsend, 10 Bush 114; Gaar v. Louisville Banking Co., 11 Bush. 189; Rilling v. Thompson, 12 Bush 310; Witherspoon v. Musselman, 14 Bush 214; Pryse v. Peoples B. L. & S. Ass'n., 19 K. L. R. 752, 41 S. W. 514; Kentucky Trust Co. v. Third Nat'l Bank, 106 Ky. 232, 20 K. L. R. 1797, 50 S. W. 43; Southern Warehouse & Transfer Co. v. Mechanic's Trust Co., 56 S. W. 162, 21 K. L. R. 1734; Fidelity Trust & Safety Vault Co. vs. Ryan, 109 Ky. 240, 58 S. W. 610, 22 K. L. R. 734.
Even though such a fee is recoverable under the law of the State where a note is payable, it cannot be recovered in this State, because such a provision is contrary to the public policy of this State. Carsey & Co. v. Swan & James, 150 Ky. 473, 150 S. W. 534.
§ 3. When An Order or Promise Is Unconditional.—"An unqualified order or promise to pay is unconditional within the meaning of this act, though coupled with it:
(1) “An indication of a particular fund, out of which reimbursement is to be made, or a particular account to be debited with the amount; or