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in payment, it becomes a money demand and is assignable as such; or, at least, that this is the case where the maker after the maturity of the note had an opportunity to perform the work called for and failed to make a tender of such work.2 Moreover, where a note is payable "in wagon work on or before" a certain day, the work to be done may be selected before maturity by the payee, at maturity by the maker.3

§ 102. "Sterling”—“Dollars.”—Under the general rule that the place of payment is contemplated in construing the terms of the bill or note, the word "sterling" will be construed to mean sterling where payable. If drawn in England, "sterling" means English currency.5

So, in general, the term "dollars" in the United States means lawful currency of the United States. But if made and payable during the war in the seceded States, it will for like reason be construed to be payable in Confederate currency. And in such case parol evidence is admissible to show that Confederate currency was intended; or was not

'Schnier v. Fay, 12 Kans. 184 (1873).
'Schnessler v. Watson, 37 Ala. 98 (1860).
3 Johnson v. Seymour, 19 Ind. 24 (1862).
Byles 86; Taylor v. Booth, 1 C. & P. 286.

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Landsdowne v. Landsdowne, 2 Bligh 95; Kearney v. King, 2 B. & Ald. 301. Bank v. Supervisors, 7 Wall. 26 (1868); Thorington v. Smith, 8 Ib. 1 (1868). So, Cook v. Lills, 13 Otto 792 (1880), where the note was executed in the Confederate States, but there was no evidence of an understanding for payment in "Confederate dollars."

Donley v. Tindall, 32 Tex. 43 (1869); Confederate Note Case, 19 Wall. 548 (1873).

These cases are apparently opposed to some earlier cases, which refuse the admission of parol evidence to show that by "dollars was intended "Commonwealth Paper," Baugh v. Ramsey, 4 T. B. Mon. 155 (1826); or bank notes, Noe v. Hodges, 3 Humph. 162 (1842); Pack v. Thomas, 13 Sm. & M. 11 (1849); or depreciated money, McMinn v. Owen, 2 Dall. 173 (1792). And any presumption that Confederate currency was intended, is rebutted by the expression current funds at the time the note falls due," Hilliard v. Moore, 65 N. C. 540 (1871).

Thorington v. Smith, 8 Wall. 1 (1868); Donley v. Tindall, 32 Tex. 43 (1869); Carmichael v. White, 11 Heisk. 262 (1872); Lobdell's Admr. v. Fowler, 33 Tex. 346 (1870); Miller v. Lacy, Ib. 351, although in this last case "dollars" are said to mean prima facie United States currency. And to the same effect see Cook v. Lills, 13 Otto 792 (1880). But to the effect that such evidence is inadmissible see Austin v. Kinsman, 13 Rich. Eq. 259 (1867); Leslie v. Langham, 40 Ala. 524; Roane v. Green, 24 Ark. 210 (1866). And an agreement to receive Confederate currency in payment, if without consideration and upon an unfulfilled condition, constitutes no defense to a note, Johnston v. Josey, 34 Tex. 533 (1870).

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intended.1 But it is not admissible to prove by parol that a certificate of deposit for so many "dollars" meant the depreciated bank notes or other currency in which the deposit had been made; or a currency used in the deposit and since then depreciated. And where a deposit has been made in depreciated bills in a bank keeping also a separate account of specie deposits, the holder's refusal to accept depreciated bills in payment of a check against the deposit does not prejudice his right to protect the check against the maker.*

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In like manner a note for so many "dollars" is payable in United States currency, although the consideration for it was a loan in depreciated bank notes. And where a bank is only authorized to issue bills redeemable in gold, it cannot be allowed to set up an agreement to pay in Confederate notes." On a bill payable in "dollars," however, a judgment cannot be rendered for coin. Nor, on the other hand, is a tender of cotton any defense to such a bill or note.

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§ 103. Parol Evidence.-Furthermore it cannot be shown by parol that "lawful money" means "lawful silver money; nor can "current lawful money" mean other than what is lawful by statute and it cannot be explained otherwise by parol.10 10 So, "current money of Missouri" cannot be shown. to mean paper money;" or "Illinois currency," or "currency," or "current funds," to mean depreciated bank bills;

'Bryan v. Harrison, 76 N. C. 360 (1877).

2 Osgood v. McConnell, 32 Ill. 74 (1863).

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3 Marine Bank of Chicago v. Chandler, 27 Ill. 525 (1862); Marine Bank of Chicago v. Ogden, 29 Ib. 248 (1862).

'Howes v. Austin, 35 Ill. 396 (1864).

Womack v. Walling, 1 Baxt. 425 (1872).

Manufacturers Bank v. Lamar, 46 Ga. 563 (1872), notwithstanding the scaling ordinance of 1865.

'Davidson v. Peticolas, 34 Tex. 27 (1870). But see Harrell v. Barnes, 34 Tex. 413 (1870).

Lang v. Waters, 47 Ala. 625 (1872).

'Alsop v. Goodwin, 1 Root 196 (1790).

10 Lee v. Biddis, 1 Dall. 175 (1786).

"Cockrill v. Kirkpatrick, 9 Mo. 688 (1846).

"Marine Bank v. Berney, 28 Ill. 90 (1862), notwithstanding the custom of Chicago banks to pay depositors in the same depreciated bills in which their deposits were made. See, too, Springfield Marine, &c., Ins. Co. v. Tincher,

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or "current bankable funds;" or "any current bank paper or State treasury notes of the State of Texas" to mean Confederate currency.2 But it may be shown by parol that "current funds" are equivalent to money."

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Neither is parol evidence admissible to show that it was intended that a note or bill should be paid in work; or in real estate; or in Indiana State stock money; or in railroad notes; or in debts of other persons; or in goods; or that it should be paid in bank notes, notwithstanding it was expressly "to be canceled by a cotton bond." 10 For a consideration of the numerous cases that have arisen under the "scaling" acts and ordinances of some of the Southern States the reader is referred to the chapter on Payment, in a later part of this work.

30 Ib. 399 (1863). So, too, when payable in "current funds," Marc v. Kupfer, 34 Ill. 286 (1864). But it was held in Pilmer v. Branch Bank, 16 Iowa 330 (1864), that the parol evidence was admissible to explain an order payable in currency, Dillon, J., saying: "The word 'currency' is far from having a settled, fixed and precise meaning, and even if it had such a meaning in general, it might acquire in certain localities or among certain classes a different signification. * We believe, upon examination and contrary to our first impression, that where a note is payable in currency, no rule is violated in receiving evidence of the general and customary meaning of these words at the place where the draft is payable."

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'Taylor v. Turley, 33 Md. 500 (1870); Turley v. Taylor, 6 Baxt. 376 (1873). 'Woods v. Parker, 36 Tex. 131 (1871).

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American Emigrant Co. v. Clark, 47 Iowa 671 (1878).

'Bradley v. Anderson, 5 Vt. 152 (1833).

Linville v. Holden, 2 MacArth. 329 (1876).

6 Burns v. Jenkins, 8 Ind. 147 (1856).

'Hair v. La Brouse, 10 Ala. 548 (1846).

8 Murchie v. Cook, 1 Ala. 41 (1840).
'Cox v. Wallace, 5 Blackf. 199 (1839).
10 Cole v. Handley, 8 Sm. & M. 473 (1847).

IV. ITS CERTAINTY.

A. Certainty as to Amount and Funds.

104. Certainty of Amount Payable.

105. Marginal Figures-Blanks.

106. Designation of Currency-Parol Evidence-Statutes. 107. Payment out of Particular Fund.

108. Fund Referred to for Re-imbursement.

§ 104. Certainty of 'Amount Payable.-One of the essential elements of negotiable paper is certainty of amount to be paid.1 An order to pay "the net amount of sales" is not a negotiable bill of exchange; nor one for "the proceeds" of a shipment of goods "valued about £2,000." In like

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manner a promise to account for the proceeds of certain notes, or to pay "whatever you may collect for me from A.," is not a negotiable promissory note. So, too, the following instruments have been held to be non-negotiable: an order for payment for "68 bushels of wheat at three cents below first quality wheat;" a promise to pay £100 "and all fines according to rule;" or £100 "and all other sums which shall be due him;" or $100 "and such additional premiums as may become due" on a certain policy of insurance;" or "deducting all advances and ex

'Byles 95; Chitty 154; 1 Daniel 56; 1 Edwards ? 153; 1 Parsons 37; Story on Bills & 42; Story on Prom. Notes & 20; Smith v. Nightingale, 2 Stark. 375; Jones v. Simpson, 2 B. & C. 318; S. C., 3 D. & R. 545; Cushman v. Haynes, 20 Pick. 132 (1838); Fiske v. Witt, 22 Ib. 83 (1839); Hasbrook v. Palmer, 2 McLean 10 (1839); Legro v. Staples, 16 Me. 252; Gaar v. Louisville Banking Co., 11 Bush 180 (1874); Matthews v. Redwine, 23 Miss. 233 (1851); Stillwell v. Craig, 58 Mo. 24 (1874).

2Jackson v. Tilghman, 1 Miles 31 (Pa. 1835).

Jones v. Simpson, 2 B. & C. 318; S. C., 3 D. & R. 545.

'Fiske v. Witt, 22 Pick. 83 (1839).

'Legro v. Staples, 16 Me. 252 (1839).

Lent v. Hodgman, 15 Barb. 274 (1853).

'Ayrey v. Fearnsides, 4 M. & W. 168. So, if it contains an agreement to pay all taxes that may be levied upon it or upon a collateral mortgage, Farquhar v. Fidelity Ins. Co., 13 Phila. 473 (1878).

Smith v. Nightingale, 2 Stark. 375; Bolton v. Dugdale, 4 B. & Ad. 619;

S. C., 1 N. & M. 412; Firbank v. Bell, 1 B. & Ald. 36.

Dodge v. Emerson, 34 Me. 96 (1852); Marrett v. Equitable Ins. Co., 54 Me. 537 (1867); Lime Rock Ins. Co. v. Hewett, 60 Me. 407 (1872); Palmer v. Ward, 6 Gray 340 (1856).

penses;" or "first deducting" amount that may be owing from the payee to the maker. In Iowa, however, a note for $100 "due for building my mill, subject to diminution by any excess in certain bills of hardware over the original bills," has been held to be for an amount certain.3

In general the rule requiring certainty as to amount is satisfied if the amount can be ascertained. Thus, "the sum making $450 on the first day of January next," is sufficiently certain. So, too, is a certain sum per acre for a designated tract of land. And an indorsement on a bond, "Pay the within contents to," &c., has been held to constitute a good bill of exchange. And the amount is not rendered uncertain by the addition of such words as "with interest," "with current exchange on B."8 Neither is the mere misspelling of the number of dollars, e. g. "fife hundret," "thee hundred," of any consequence if there is no doubt as to the amount intended.9

'Cushman v. Haynes, 20 Pick. 132 (1838). So, a note containing a provision that a smaller amount “if paid January 1st, shall cancel this note," Fralick v. Norton, 2 Mich. 130 (1851).

2 Barlow v. Broadhurst, 4 Moore 471; Leeds v. Lancashire, 2 Campb. 205. Green v. Austin, 7 Iowa 521 (1859). *Knight v. Jones, 21 Mich. 161 (1870). "Smith v. Clopton, 4 Tex. 109 (1849).

Bay v. Freazer, 1 Bay 66 (1789).

'Interest from date being intended, and the fact that the note is only payable after the maker's death being immaterial, Richards v. Richards, 2 B. & Ad. 447 (1831); Roffey v. Greenwell, 10 Ad. & El. 222 (1839). But a note has been held to be non-negotiable if payable "with interest the same as savings banks pay," Whitwell v. Winslow, 134 Mass. 343 (1883); or in two years with interest, or without interest, if paid within one year, Lamb v. Story, 45 Mich. 488 (1881). And it is not sufficiently certain to make a note for the payment of money and also "all counsel fees and expenses in collecting the note if it is sued on or placed in the hands of an attorney for collection," First Nat. Bank v. Bynum, 84 N. C. 24 (1881); or “with per cent. attorney's commissions if collected," Johnston v. Speer, 92 Penna. St. 227 (1879).

Price Teal, 4 McLean 201 (1847); Grutacup v. Woulluise, 2 Ib. 581; Smith v. Kendall, 9 Mich. 241 (1861); Leggett v. Jones, 10 Wis. 34 (1859). So, too, Bradley v. Lill, 4 Biss. C. C. 473 (1867), overruling Lowe v. Bliss, 24 Ill. 168. The contrary was held in Russell v. Russell, 1 MacArth. 263 (1874), where the bill was payable and drawn in the same place. See, also, contra, Lowe v. Bliss, 24 Ill. 168 (1860); Philadelphia Bank v. Newkirk, 2 Miles (Pa.) 442; Fitzharris v. Leggett, 10 Mo. App. 527 (1881).

Ohm v. Yung, 63 Ind. 432 (1878); Burnham v. Allen, 1 Gray 496 (1854); especially if the amount is correctly given in figures in the margin, as in the latter case.

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