Shemonia v. Verda , 24 Ohio App. 246 ( 1927 )

Plaintiff, Petros Shemonia, sued the defendant, Vassili Malik Verda, upon the following written instrument, signed by the defendant:

"Cleveland, Ohio, January 2, 1924.

"I borrowed money from Petros Shemonia, the sum of five hundred dollars ($500.00) with 4 per cent. interest. The borrowed money ought to be paid within four months from above date.

"[Signed] Vassili Malik Verda.

"Witness: Piroske Verda."

There was the following indorsement on said instrument:

"8/20/26. Paid $10.00 hereon, Rudin Keech, Attys."

Plaintiff's petition was in the short form under favor of Section 11334, General Code. The question was raised by motion, and the lower court determined that said writing was not an "instrument for the unconditional payment of money only," within the meaning of Section 11334, and struck from the petition the allegations thereof which set forth and referred to said instrument. The plaintiff not desiring to plead further, final judgment was rendered for the defendant.

If said writing signed by the defendant was "an instrument for the unconditional payment of money only," then the trial court committed error in the ruling on the motion and in rendering final judgment.

We are of the opinion that the phrase, "an instrument for the unconditional payment of money only," comprehends a writing which does not have all of the elements of a non-negotiable promissory note, for instance, a signed written instrument which acknowledges a debt of a certain amount due to a particular party, which does not contain an express promise to pay, the promise to pay being implied in law from the acknowledgment of the indebtedness; but, however that may be, there can be no question that a signed writing which does contain the essential elements of a promissory note, although the same is not so drawn as to be negotiable, is an instrument for the unconditional payment of money only, which may be copied into the petition and sued upon under favor of above section, and no particular form of words is necessary to constitute an instrument a promissory note.

The instrument in question is unconditional, and it is for the payment of money only. But it is claimed that it is not a non-negotiable promissory note because it contains no promise or agreement to pay.

It is true that some courts hold that to be a promissory note the instrument must contain an express promise to pay, and that a promise to pay which is implied in law is not sufficient to constitute the instrument a promissory note. But by the great weight of authority, if the language of the instrument is such that there may be deduced from it a direct undertaking to pay, that is sufficient; in other words, if the promise is not one implied by law from an acknowledgment of indebtedness, but is implied from the language of the instrument itself, from the language used by the maker, the instrument is then a promissory note, which may be sued upon as an instrument for the unconditional payment of money only.

An instrument, "``Borrowed and received from George M. Bryne, five hundred and eighty-five dollars, payable April 1, 1904, with interest at 6 per cent. J.L. Bryne,' is as matter of law a non-negotiable promissory note;" the word "payable" importing a promise to pay the sum stated at the time fixed. Bryne v. Bryne,209 Mass. 179, 95 N.E. 88.

In Funk v. Babbitt, 156 Ill. 408, 41 N.E. 166, an instrument in the following language was held to contain a promise to pay: "$350.00 Bloomington, Ill., April 23, 1891.

"Thirty days after date pay to the order of E.D. Babbitt $350, for value received.

"Funk Lackey."

A duebill in the words, "Due K. and K. three hundred and twenty-five dollars, payable on demand. October 20, 1821," and signed, is a promissory note. Kimball v. Huntington, 10 Wend. (N.Y.), 675, 25 Am. Dec., 590.

An instrument in the following language, "Pay William Morris one hundred and five and 70/100 dollars, with 8 per cent. interest, B.E. Brooks," was held to be, in legal effect, a note as between the parties to it. Brooks v. Brady, Adm'r., 53 Ill. App. 155.

"Any mere written promise to pay money unconditionally, is a promissory note; therefore a paper, signed by defendant, stating that he had received a certain sum from the plaintiff which he would return when called for; or a paper acknowledging, that the defendant had borrowed a certain sum of the plaintiff, is a promissory note." Woodfolk v. Leslie, (S.C.), 2 Nott McC., 585.

"An instrument in writing, thus, ``Due L.R. or bearer,' etc., ``$200.26, for value received,' is a good promissory note, within the Statute of Anne." Russell v. Whipple, 2 Cow. (N.Y.), 536.

"1. A written instrument in the form following is a joint and several promissory note: ``I hereby certify to have received of Mr. Dan Deiss as a loan for three months $500. Columbus, Ohio, August 12, 1872. Oscar Orlopp. Emillie Orlopp;' and an action thereon may be maintained against one of the makers." Orlopp v. Schueller, Adm'r., 4 C.C. (N.S.), 611, 16 C.D., 127.

The latter case was an action under the short form of pleading, the same as the case at bar.

In the case at bar the instrument recites that the defendant borrowed a specific amount of the plaintiff "with 4 per cent. interest," and that "the borrowed money ought to be paid within four months from above date."

We hold that the acknowledgment by the defendant that he borrowed the money from the plaintiff, and ought to repay it, imports and amounts in law to a promise to pay it, when considered in connection with the whole writing that was signed by the defendant, which specified the amount, due date, and rate of interest, and that therefore the instrument in question does contain all of the elements of a non-negotiable promissory note, and is an instrument for the unconditional payment of money only, within the meaning of Section 11334, General Code.

The judgment of the common pleas court in favor of the defendant is contrary to law, and for that reason said judgment is reversed and the cause remanded.

Judgment reversed and cause remanded.

FUNK and PARDEE, JJ., concur.