Ring v. Foster , 6 Ohio 540 ( 1834 )

Wright, J.:

The act of assembly dispenses with proof of execution of “ any promissory note or bill of exchange ” in a case situated as this is. 29 Ohio L. 122. The simple question before the court is, whether the following instrument is a promissory note, for no one claims it to be a bill of exchange:

“Three months after date we promise to pay Samuel Foster, or order, one hundred and forty-three dollars and twenty-two cents; provided Samuel Foster delivers the crop of tobacco raised by him and Trockmiller; the said Foster is to have one-fourth of the above in hand, and in addition three dollars and fifty cents per hundred for that part yet to be delivered, payable one-fourth in hand and the balance in one hundred and twenty days.

“ Thomas H. Cushing,

Ring & Rice,

J. H. Harris, per J. JJ. Gushing.

“ April 28, 1827.”

A promissory notéis a “written promise for the payment of money, absolutely, and at all events.” Bayley on Bills, 1. Accord* ing to Blackstone, 2 B. C. 467, it is “ a plain and direct engagement ■in writing to pay a sum specified, at the time therein limited, to a person therein named, or sometimes to his order, or oftener to the bearer at large.” To my understanding the instrument before me ■does not satisfy either definition, or the common acceptation of a promissory note. It is not an absolute promise to pay at all ■events a certain sum, for part of the amount is dependent upon the contingencies of the delivery of a crop of tobacco, and the quantity estimated at three dollars and fifty cents per hundred. The time of payment is not on a day fixed and certain, but depend-•541] ent the whole upon contingencies, and part upon ^double contingencies. If the crop of tobacco was delivered (at what time is uncertain), a fourth of the one hundred and forty-three dollars .and twenty-two cents was to be paid down, if not the whole in three months. If such an instrument was offered to a merchant, ■or a bank, as a promissory note, would it not be rejected at once .as no promissory note?

I think the court below erred in admitting the instrument in evidence without proof of its execution, because it is not a promissory note.