Murray v. Quint , 102 Me. 145 ( 1906 )

Emery, J.

This is an action counting on the following written instrument as a promissory note, viz:

“$112.85 Springvale, Me., Feb. 17, 1890.

Four months after date for value received I promise to pay E. G. Murray or order one hundred twelve and 85-100 dollars, with interest at six per cent, the same being for the following named property which I have this day bought of said Murray, one Brown horse 12 years old weight 1130 lbs., one top carriage made by the Water Town Spring Wagon Co., and one set of one-horse sleds called the Nutter sleds, said horse, carriage and sleds is to remain the property of said Murray until said sum aud interest are paid.

Payable at any Nat. Bank. Bradford Quint.

“ Attest: Dora A. Murray.”

The statute of limitations was set up in defense but it is admitted that the instrument was signed in the presence of an attesting witness, and that the statute does not apply to this action if the instrument is a promissory note within the meaning of it, S., eh. 83, sec. 89, which declares that the six years limitations “do not apply to actions on promissory notes signed in the presence of an attesting witness.”

The defendant’s contention is that the instrument is simply evidence of an agreement by the plaintiff to sell the articles therein named, aud an agreement by the defendant to purchase and pay for them ; that there is no obligation to pay till the sale is actually made, a circumstance striking the instrument out of the category of promissory notes. The contention cannot be sustained. By the express terms of the instrument, the defendant, acknowledging value received, unconditionally promised to pay to the plaintiff or his order a fixed sum of money at a fixed time. This is all that is necessary to constitute a promissory note within the statute cited.

The additions of the statement of the consideration (not being illegal) and of the stipulation that the title to the goods bought by the promise shall remain in the plaintiff until the performance of the promise, do not at all modify the explicit terms of the promise itself. There is no intimation in any part of the instrument of any contingency in which the defendant need not pay according to the explicit terms of his promise. The instrument is a promissory note signed in the presence of an attesting witness, and the statute of limitations does not apply. Collins v. Bradbury, 64 Maine, 37.

Exceptions overruled.