§ 86. Language of Contract.-No forms of contract are better known, nor in general simpler or briefer, than the ordinary form of promissory note, bill of exchange or draft, and check. No particular form of words is necessary to constitute such instrument.1 Thus, a note may be in the form commonly used for a bond; or, under some circumstances, for a bill of exchange. So, an order for payment indorsed on a bond or note or on a statement of account has been held to be equivalent to a bill of exchange.*

2

'Byles 78; Chitty 148; 1 Daniel 82; 1 Edwards 134; 1 Parsons 23; Story on Bills 33; Story on Prom. Notes 12; Morris v. Lea, Ld. Raym. 1396; S. C., 1 Stra. 629; Brooks v. Elkins, 2 M. & W. 74; Peto v. Reynolds, 9 Exch 410; S. C., 11 Ib. 418; Hitchcock v. Cloutier, 7 Vt. 22 (1835); Partridge v. Davis, 20 Vt. 499 (1848); Smith v. Bridges, 1 Ill. 18 (1819). And this is expressly provided in the Civil Code of Lower Canada 1867 ? 2344.

Woodward v. Genet, 2 Hilt. 526 (1858); Bank of Louisiana v. Williams, 21 La. An. 121 (1869); Hitchcock v. Cloutier, 7 Vt. 22 (1835).

Byles 93; Chitty 151; Edis v. Bury, 6 B. & C. 433; 9 D. & R. 492; Edwards v. Dick, 4 B. & Ald. 212; Lloyd v. Oliver, 18 Q. B. 471; Allen v. Mawson, 4 Campb. 115.

*1 Daniel 82; Leonard v. Mason, 1 Wend. 522 (1828); but not a negotiable bill, Hoyt v. Lynch, 2 Sandf. 328 (1849). But in Platzer v. Norris, 38 Tex. 1 (1873), such instrument was held not to be a bill of exchange for want of

Irrespective, however, of words relating to the consideration, place of payment and transferability (to be considered elsewhere), certain phrases have been at times required by statute to make a note negotiable in the fullest commercial sense. Such a requirement is that which limited negotiability to notes containing the words "without defalcation or discount." So, the statute requiring notes given for a patent to express that fact on their face by the words "given for a patent right." And in some foreign states bills of exchange must be designated as such in plain words; while in Germany the

the name of a payee. An order of this sort is not the less a bill of exchange because referring to, instead of indorsed on, a note, e. g. an order to pay C. or bearer $400 "and take up A.'s note for that amount," Cook v. Satterlee, 6 Cow. 108 (1826). But an order for payment of demurrage indorsed on a bill of lading will not render it negotiable, Falkenburg v. Clark, 11 R. I. 278 (1876).

In Missouri the words "negotiable and payable without defalcation or discount," were formerly necessary to a negotiable note (1835 R. C. 298 § 7). But they are no longer required (1865 G. S. c. 86 & 15; 1879 R. S. c. 10 % 547). See as to former requirement, Macy v, Kendall, 33 Mo. 164 (1862).

So, in New Jersey the words "without defalcation or discount" were formerly necessary to make a promissory note negotiable independent of equities (1795 Pat. Rev. p. 342 4). This was repealed in 1871 (P. L

p. 13).

In Arkansas like force was given to the words "without defalcation " until 1873 (Gould's Dig. c. 15 3). See, too, Woodruff v. Webb, 32 Ark. 612 (1877).

In Pennsylvania promissory notes "bearing date in the city and county of Philadelphia" and containing the words "without defalcation or "without set-off" may be "held by the indorsees discharged from any claim of defalcation or set-off" (Act of 1797; 1872 Purd. Dig. p. 1173 ? 1).'

'In Michigan the words “given for a patent right" must be added on the face of notes given in purchase of patent rights and such addition subjects the note to defenses as though in the hands of the original payee (1 Comp. L. 1871 p. 519; 1871 P. L. p. 191). So, in New York (1877 P. L. p. 68). So, in Ohio (1880 R. S. 3178; 1869 P. L p. 93 1). This act has been held not to apply to a non-negotiable note, State v. Brower, 30 Ohio St. 101 (1876); or to a note given for a patented machine, State v. Peck, 25 Ib. 26 (1874). So, in Pennsylvania (1872 P. L. p. 60 ? 1, 2; Purd Dig. p. 1173 3). Indiana, Nebraska and Vermont have similar acts. The Indiana statute has been held unconstitutional, Helm v. First Nat. Bank, 43 Ind. 167 (1873). But the contrary has been held in Pennsylvania, Haskell v. Jones, 86 Penna. St. 173 (1878); and in Ohio, Tod v Wick, 36 Ohio St. 370 (1881). The omission of these words will not, however, affect the validity of the note in the hands of a bona fide holder, Hunter v. Henninger, 93 Penna. St. 373 (1880); Haskell v. Jones, 86 Penna. St. 173 (1878); Hereth v. Meyer, 33 Ind. 511 (1870); Moses v. Comstock, 4 Neb. 516 (1876); Pindar v. Kelley, 48 Vt. 27 (1875); Streit v. Waugh, Ib. 298 (1876). And the words "given for a patent right do not destroy the presumption of good faith in the purchaser, Goddard v. Lyman, 14 Pick. 268 (1833); Hereth v. Merchants' Nat. Bank, 34 Ind. 380 (1870).

This is the case as to drafts in Bolivia (Com. Code 1834 Art. 463); Spain (Com. Code 1829 Art. 563); Peru (Cod. Com. 1853 Art. 522); Colombia (Com.

word "Wechsel" (exchange) or its equivalent in a foreign language is indispensable to both bill and notes. In Hungary, moreover, there is a curious provision as to form, which makes everything "in Hebrew letters" invalid in such instruments.2

§ 87. Necessary Promise or Order.—Whatever may be the language or form of words used, a contract for the payment of money is essential to the character of commercial paper. In a note this contract takes the form of a promise to pay. In a bill or draft it takes the form of a request or order to pay.3 But the word "pay is not indispensable. Thus a promise "to pay or cause to be paid " has been held to be a sufficient promissory note; so, "to account," "to be accountable for ;"5 So, without further words of promise, "good to A. B. or order for $30;" or, "good to bearer" written under an account in which the amount was stated;" so, "I guaranty to pay."

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Code 1853 Art. 517); Costa Rica (Com. Code 1853 Art. 510); and Ecuador (same as Spain); as to bills and notes in Russia (Law of 1832 Art. 541); and Salvador (Com. Code 1855 Art. 510); as to bills of exchange only in Sweden and Norway (Exch. Law 1851 c. 1 1); and Switzerland (Zurich 1805 & 1; Berne 18593; Basle 18633).

'Thöl W. R. 146; Germ. Exch. Law 1848 Arts. 4, 96. This requirement was adopted also in Austria (Exch. L. 1850 Arts. 4, 96), and in Hungary (Exch. Law 1860 c. 1 % 14).

'Hungarian Exch. Law 1860 c. 1 14; Law of 1844 ? 2.

'Byles 82; 1 Daniel 40; 1 Parsons 42; Story on Prom. Notes 19 n. 3. But where by mistake or fraud the instrument read, "Borrowed of I. S. £50 which I promise never to pay," recovery was had as on a proper promise, Anon., 2 Atk. 32; Chitty 151.

'Lovell v. Hill, 6 C. & P. 238 (1833); or simply an acknowledgment of debt "to be paid," Casborne v. Dutton, Sel. N. P. 381. So, too, without any word of promise the following instrument has been held to be a promissory "For value received of A. B. or order $30 on demand and interest annually," Cummings v. Gassett, 19 Vt. 308 (1847).

note:

was

'Morris v. Lea, Ld. Raym. 1396; S. C., 1 Stra. 629; see, too, Furber v. Caverly, 42 N. H. 74 (1860), where an indorsement of “A. B. accountable held to be a sufficient contract of guaranty. So, Bagley v. Buzzell, 19 Me. 88 (1841). But, contra, under stamp act, a mere receipt for £20, “which I borrowed of you and I have to be accountable for the said sum," Horne v. Redfearn, 4 Bing. N. C. 433 (1838).

Franklin v. March, 6 N. H. 364 (1833). And see Weston v. Myers, 33 Ill. 424 (1864), where no payee was named, but the holder was allowed to add his own name as payee. But the contrary was held, for want of a payee, in Brown v. Gilman, 13 Mass. 158 (1816).

'Hussey v. Winslow, 59 Me. 170 (1870).

Ketchell v. Burns, 24 Wend. 456 (1840); Lequeer v. Prosser, 1 Hill 256 (1841); Bruce v. Westcott, 3 Barb. 374 (1848); Partridge v. Davis, 20 Vt. 499 (1848). Not so, however, a guaranty of another note written on a separate paper, Weed v. Clark, 4 Sandf. 31 (1850).

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And even the words "I have borrowed" have been held to imply a promise of payment;1 or the indorsement "holden."" In like manner an order to "let the bearer have $50" constitutes a valid bill of exchange. So, too, an order to "credit A. in cash." And all mistakes of expression are immaterial, which merely substitute a past for a present tense, e. g. 'I promist;"" or use the pronoun "I" for several joint makers; or the pronoun "we" for a sole maker. So, too, "we or either of us promise" has been held to constitute a good joint and several note.8

6

The expressions "please," "and oblige," &c., do not detract

'Harrow v. Dugan, 6 Dana 341 (1838); Woodfolk v. Leslie, 2 Nott & McC. 585. So, too, the following has been held to be a good note: "A. B. borrowed of C. D. £14 as per loan in promise of payment of which I am truly thankful for and shall never be forgotten by me, J. M. your affectionate brother, £14," Ellis v. Mason, 1 Eng. Jur. 380, cited 2 Hill 295 n. But see, Horne v. Redfearn, 4 Bing. N. C. 433. And in Hyne v. Dewdney, 21 L. J. Q. B. 278 (1852), Lord Campbell, C. J., said of a paper in these words, "Borrowed of A. B. £100 for one or two months," that there was "no binding nothing more than a simple acknowledgment of the money having been paid."

contract

*

*

*

Bean v. Arnold, 16 Me. 251 (1839).

3 Biesenthal v. Williams, 1 Duv. 329 (1864). But see, contra, Little v. Slackford, 1 Mood. & M. 171 (1828).

Ellison v. Collingridge, 9 C. B. 570 (1850); Allen v. Sea, F. & L. Ass Co., Ib. 574. But an order to "credit A. or bearer $30, and I will pay you," is not a sufficient bill of exchange, Woolley v. Sergeant, 3 Halst. 262 (1826). 'Bland v. People, 4 Ill. 364 (1842); and "I promised," &c., has been held to be a sufficient negotiable note to support an indictment for the forgery of a note, Perkins' Case, 7 Gratt. 651 (1851).

6 Lequeer v. Prosser, 1 Hill N. Y. 256; Hemmenway v. Stone, 7 Mass. 58; Wallace v. Jewell, 21 Ohio St. 163 (1871); Ely v. Clute, 19 Hun 35 (1879); Holman v. Gilliam, 6 Rand. 39 (1827); Maiden v. Webster, 30 Ind. 317 (1868); Harrow v. Dugan, 6 Dana 341 (1838); Ladd v. Baker, 26 N. H. 76 (1852); Humphreys v. Guillow, 13 N. H. 387; Eddy v. Bond, 19 Me. 461 (1841); Barnet v. Skinner, 2 Bailey 88 (1831); Hopkins v. Lane, 4 T. & C. 311 (1874); Lane v. Salter, 4 Roberts. 239 (N. Y. 1866); Higerty v. Higerty, 1 Phila. 232 (1851); Kinsely v. Shenberger, 7 Watts 193; Karck v. Avinger, 3 Hill 215 (So. Car. 1837); Monget v. Penny, 7 La. An. 134 (1852); Groves v. Stephenson, 5 Blackf. 584 (1841); Monson v. Drakeley, 40 Conn. 552 (1873); Dederick v. Barber, 44 Mich. 19 (1880); Dill v. White, 52 Wis. 456 (1881). It has, however, been held not to be prima facie a joint note, where one signed at the right hand with a seal and the other to the left with the word "witness" printed above his name, Steininger v. Hoch, 39 Penna. St. 263 (1861); Hopkins v. Lane, 4 T. & C. 311 (1874). But see, contra, Keller's Admr. v. McHuffman, 15 W. Va. 64 (1879), which only differed from Steininger v. Hoch, supra, in using the word "security" instead of "witness."

'Whitmore v. Nickerson, 125 Mass. 496 (1878); Rice v. Gove, 22 Pick. 158; Holmes v. Sinclair, 19 Ill. 71 (1857); Dickerson v. Burke, 25 Ga. 225 (1858). Pogue v. Clark, 25 Ill. 333 (1861).

from the commercial character of an instrument. Thus, Lord Kenyon held an instrument to be a bill of exchange, which read: "Mr. N. will much oblige Mr. W. by paying," &c.1 But a mere request to do a favor to the drawer is not a bill of exchange, e. g. "please let the bearer have £7 and place it to my account and you will much oblige your humble servant;"" or, "please take up my note payable to S. for $200 and it will be all right as we talked ;" or, "please pay my wages as fast as they become due to the amount of $150."* So, "I allow to give" has been held to express a mere intention and no sufficient promise."

§ 88. Acknowledgments-Due-bills.-A mere acknowledgment of indebtedness is not, in general, sufficient to constitute either a bill or note; although such acknowledgment has been held a sufficient promise to take a case out of the statute of limitations in Georgia. And in Alabama an acknowledgment of a sum due setting out the consideration for which it was given has been held to be a promissory note. And some of the United States have by statute extended the character and law of promissory notes to all instruments in writing "whereby any person acknowledges any sum of money to be due to any other person.

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Ruff v. Webb, 1 Esp. 129 (1794). See, too, Russell v. Powell, 14 M. & W. 418. And see, Biesenthal v. Williams, 1 Duv. 329 (1864). But " we authorize you to pay A. B. or order" is not sufficient to make a bill of exchange, Hamilton v. Spottiswoode, 4 Exch. 200 (1849). 'Little v. Slackford, 1 Mood. & M. 171 (1828).

'Gillilan v. Myers, 31 Ill. 525 (1863).

'Knowlton v. Cooley, 102 Mass. 233 (1869). Harmon v. James, 7 Ind. 263 (1855).

Byles 28; Chitty 150; 1 Daniel 42; 1 Parsons 25; Story on Prom. Notes 14; Sears v. Trustees Wesl. Univ., 28 Ill. 183 (1862); New Orleans v. Straus, 25 La. An. 50 (1875); Carson v. Lucas, 13 B. Mon. 213 (1852). And this is clearly the case where a memorandum ("I owe the estate of A. B. $150”) was given merely as a statement without intention of making a note of it, Bowles v. Lambert, 54 Ill. 237 (1870).

'Brewer v. Brewer, 6 Ga. 588 (1849).

Fleming. Burge, 6 Ala. 373 (1844). See, too, Blood v. Northrup, 1 Kans. 28; Finney v. Shirley, 7 Mo. 42.

This statute appears to have originated in Illinois (1845 R. S. 384; 1880 R. S., Hurd's Ed., c. 98 22 3-7). It has been enacted also in Colorado (1877 G. L. 110 & 90); Idaho (1875 R. L. 648 ? 1-4); Indiana (1 R. S., Davis' Ed., 1876 c. 177 22 1-4; also vol. 2 p. 35 % 6); Iowa (1880 Rev. Code & 2085); and