Downing v. Wheeler , 93 Me. 570 ( 1900 )

Haskell, J.

Plaintiff produced a promissory note of the defendant, payable on demand to the order of her husband. Upon it was written, “ Mr Wheeler [maker of the note], it is the wish of George A. Downing [payee] for you to pay Mary S. Downing [plaintiff] the amount due on this note at his death. (Signed) George A. Downing.”

The production of the note with the indorsement upon it raises a fair inference that it had been delivered to the plaintiff during the lifetime of her husband, the payee. The question at issue is not that of title to the note, but whether it had become payable to the plaintiff. One may retain title to a negotiable note and order its contents paid to another who may sue upon it, and the maker cannot raise that defense, because he had promised to pay, not necessarily to the owner, but to the order of the payee.

The payee ordered the contents of the note remaining due at a future day, sure to come, paid to the plaintiff. The defendant had promised to pay to whomsoever the payee might order. The order had been written and signed and delivered before the day when it called for payment. The defendant had promised to so pay when he gave the note. When the day of payment came, why had not the note become negotiated to the plaintiff? Suppose it had been a non-negotiable note, and the payee had ordered the maker to pay another at a future day any amount then due, and the maker had accepted the order, could not the acceptance be enforced? If the order were to pay at the death of the maker of it, and before that time, had been accepted, would it not have become an enforceable contract? And yet, not more so than the acceptance,beforehand of the order upon the note in suit. When the contingency of the payee’s death happened, the note had become payable to the plaintiff, for the benefit of whomsoever it might concern. It had then become payable to her, and she may sue upon it.

Defendant defaulted.