bill, "to be paid as wanted for her support, and if no part is wanted it is not to be paid," is clearly contingent and not negotiable as a note.1 It is said, however, that a note payable "when able" means "on demand if then able;" and that a promise to pay a note "when able" is not sufficient to take it out of the Statute of Limitations.3

If a bill or note is made payable "when in funds," it is conditional and not negotiable. So, if payable "as soon as I am in possession of funds from the estate of B."5 A note payable "when in funds" need not be protested until such time arrives. And in all such cases the burden of showing the maker or acceptor to be in funds is upon the holder of the note or bill."

6

§ 112. Payable "When Realized from Sales"—"When Collected." If an order is made payable "ninety days after sight or when realized," this means, in the language of Lord Campbell, C. J., "when you are in funds for the purpose;" and such instrument was held not to be a bill of exchange. 8 In like manner, an instrument payable "when the amount shall be collected" is a conditional agreement and not a note. But it has been held, with apparent contradiction, that an instrument payable in one year "and if not enough realized in one year, to have more time," is payable in a reasonable time and negotiable.10 So, too, an instrument payable "as soon as collected from my accounts at P.""

'Gordon v. Rundlett, 28 N. H. 435 (1854).

'Veasey v. Reeves, 6 Ind. 406 (1855).

Wilcox v. Williams, 5 Nev. 206 (1869).

'Gillespie v. Mather, 10 Penna. St. 28 (1848). See, too, Jackson v. Tilghman, 1 Miles 31 (Penna. 1835).

Wiggins v. Vaught, Cheves 91 (1840).

"Harrell v. Marston, 7 Rob. 34 (La. 1844).

'Mason v. Graff, 35 Penna. St. 448 (1860).

"Alexander v. Thomas, 16 Q. B. 333 (1851). But see infra.

Corbett v. State of Georgia, 24 Ga. 287 (1858); Henry v. Hazen, 5 Ark. 401 (1842). So far at least as to put the sum out of reach of an attachment against the payee, State v. Burton, 11 Wis. 50. And such note cannot mature until the amount has been collected, Allen v. Davis, 11 Mo. 479 (1848). 10 Capron v. Capron, 44 Vt. 410 (1872).

"Ubsdell v. Cunningham, 22 Mo. 124 (1855); Vaughan v. Dean, 32 Ga. 502 (1861); Woolbright v. Sneed, 5 Ib. 167 (1848).

*

It is said that a note payable eight months after date, "to be paid as soon as I can get my returns from New Orleans or at the above date at the furthest," is sufficiently declared on as payable eight months after date.' And there seems to be a reasonable distinction between such instruments as that last mentioned and instruments payable only when realized or collected. If payable "as soon as can be realized from the property I have this day purchased to be paid in the course of the season now coming," it is payable certainly at the end of the season (although it may become due sooner in a certain contingency), and is therefore held to be negotiable. So, too, if payable six months after date or sooner if made out of a sale" of certain property;3 "or as soon as I can with due diligence make the money out of said patent right;" or as soon "as A.'s horse earns the money in the cavalry service."5

66

On the other hand, a promise of payment on the sale of certain property, without other time fixed, is not a promissory note. Neither is a promise of payment "as soon as the crop can be sold or the money raised from any other source," although held to be due in a reasonable time; or of payment at a time certain with a stipulation "not to ask or expect payment until the old mill is sold."

'Hoover v. Johnson, 6 Blackf. 473 (1843).

998

2 Cota v. Buck, 7 Metc. 588 (1844), Shaw, C. J., saying: "The true test of the negotiability of a note seems to be whether the undertaking of the promisor is to pay the amount at all events at some time which must certainly come."

Ernst v Stockman, 74 Penna. St. 13 (1873); Cisne v. Chidester, 85 Ill. 523 (1877); McCarty v. Howell, 24 Ill. 341 (1860); Walker v. Woollen, 54 Ind. 164 (1876).

'Palmer v. Hummer, 10 Kans. 464 (1872).

Gardner v. Barger, 4 Heisk. 669 (1871).

Hill v. Halford, 2 B. & P. 413 (1801); De Forest v. Frary, 6 Cow. 151 (1826). But in Illinois an agreement to pay "whenever the lands in the late purchase in Iowa Territory shall be advertised for sale" has been held to be a promissory note, Glancy v. Elliott, 14 Ill. 456. So, in Maine, "from the avails of logs bought of A. B. when there is a sale made," Sears v. Wright, 24 Me. 278 (1844); or “when I sell my place where I now live," i. e. in a reasonable time, Crooker v. Holmes, 65 Me. 195 (1875).

'Nunez v. Dautel, 19 Wall. 560 (1873).

Blake v. Coleman, 22 Wis. 396 (1868).

§ 113. Payable on Death-Marriage-Coming of Age.Commercial paper may be made payable on any event, however remote, which must inevitably happen some time or other. Thus, it may be payable on the death of a certain person;1 or "on demand after my decease;" or "one day after date or at my death." It will, however, be unavailing as a note, if delivery is postponed until then; or if the amount is rendered uncertain by the uncertain date of the death, as if payable in installments to cease on the death of A. B.5

On the other hand, marriage is an uncertain event, which may never happen. A note or bill cannot, therefore, be made payable "ninety days after my marriage;” or “if I am married in two months;"" or "when A. B. shall marry.'

998

So, too, the time of a certain person coming of age is certain, but his living until then is uncertain. A note, therefore, payable "when A. shall come of age" is not negotiable. But a note payable to A. B. "when he shall come of age, to wit, 12th June, 1750," is payable at all events on the day named, and therefore negotiable.10

§ 114. Payable in Installments-On Default of Interest— After Notice.-A bill or note may be made payable in installments, unless prohibited by statute." And where a note is given for $1,200, "$200 in each year," the installments will be due at the end of each year reckoned from the date of the

1Cooke v. Colehan, 2 Stra. 1217; Roffey v. Greenwell, 2 Perry & D. 365; 11 Ad. & E. 222.

'Bristol v. Warner, 19 Conn. 7 (1848).

'Conn v. Thornton, 46 Ala. 587 (1871).

'Warren v. Durfee, 126 Mass. 338 (1879). In this case the note was found in a sealed envelope, and was without consideration and not executed as a will, and it was held to be wholly without force.

'Chitty 156; Worley v. Harrison, 3 Ad. & E. 669.

"Beardsley v. Baldwin, 2 Stra. 1151; and see, Pearson v. Garrett, 4 Mod.

242.

'Chitty 156; Pearson v. Garrett, 4 Mod. 242 (1694).

Chitty 156; Pearson v. Garrett, 4 Mod. 242 (1694).

'Kelley v. Hemmingway, 13 Ill. 604 (1852).

10 Chitty 158; 2 Bl. Com. 513; Goss v. Nelson, 1 Burr. 226. "Wright v. Irwin, 33 Mich. 32.

note. So, a time may be named for the entire payment to be made, with installments in the meantime at intervals.2

Or a note may be made payable in installments and the whole be made payable on default in any installment;" or, at the holder's option, on default in the payment of interest.* But where a trust deed securing several notes contains a provision making all due in default of any one, and this provision is not in the notes, it will only take effect so far as it regards the proceeds of sale under the trust deed. So, a note may be made payable "in such portions and at such times as the directors (payees) may require," and it is then equivalent to a note payable on demand. This is a common form of notes given for insurance premiums.

5

A note may also be payable in a certain time after notice." In such case it is payable forthwith on notice and expiration of time fixed, although there may be a provision "not to draw interest unless it remains three months."8

§ 115. Payable on Return of Papers-Completion of Building-Settlement of Accounts-Arrival of Ship.-Again, a certificate payable "on return of this certificate," is negotiable; but not, if payable on the return of another paper, e. g.

'Rideout v. Woods, 30 N. H. 375 (1854).

Ewer v. Meyrick, 1 Cush. 16 (1848). This was a note for $750 payable in ten years, "$50 of the principal to be paid annually until the whole is paid." The whole note became due in ten years.

3 Carlon v. Kenealy, 12 M. & W. 139 (1843); Cooke v. Horn, 29 L. T. (N. s.) 369. See, too, German Mut. Ins. Co. v. Franck, 22 Ind. 364 (1864); May, &c., v. City Bank, 58 Ga. 584 (1877). But in the absence of express provision for the whole to become due on default in installments, parol evidence is inadmissible to show an agreement to that effect, Blakemore v. Wood, 3 Sneed 470 (1856).

'Sea v. Glover, 1 Bradw. 335 (1878).

6

"Morgan v. Martien, 32 Mo. 438 (1862).

Colgate v. Buckingham, 39 Barb. 177 (1863); Savage v. Medbury, 19 N. Y. 32; Howland v. Edmonds, 24 Ib. 307 (1862); Protection Ins. Co. v. Bill, 31 Conn. 534 (1863); White v. Smith, 77 II. 351 (1875); Goshen Turnpike v. Hurtin, 9 Johns. 217 (1812); Dutchess Cotton Mfy. v. Davis, 14 Johns. 244 (1817); Gaytes v. Hibbard, 5 Biss. C. C. 100 (1869). But see, contra, Washington Mut. Ins. v. Miller, 26 Vt. 77. See, also, Stillwell v. Craig, 58 Mo. 24 (1874).

'Clayton v. Gosling, 5 B. & C. 360; S. C., 3 Dow. & R. 110.

8 Richer v. Voyer, L. R. 5 P. C. 461 (1874).

Smilie v. Stevens, 39 Vt. 315 (1866); Hunt v. Divine, 37 Ill. 137 (1865). So, a receipt for "$2,400 paper currency from A. B. which I promise to pay

a guaranty of another note.1 And a negotiable note, payable in four years, "or upon surrender of note at any time. before maturity to issue stock for it," is not made non-negotiable by the last provision."

3

A negotiable note may be made payable when the payee shall have constructed a certain railroad; or completed a certain building according to contract. But a note given for the construction of a canal, payable "on the final estimate of said section," is uncertain and non-negotiable.

6

If the time fixed for payment is the settlement of an estate, account or litigation, it is necessarily uncertain and may never arrive. In all such cases the instrument is conditional and not negotiable, e. g. if payable "when the estate of A. is settled;" or "ninety days after dissolution of the partnership and settlement of its books ;"" or when a dividend is declared; or when a suit is determined between A. and B.; or "as soon as you receive the amount of my account of the government from A. B." 10 But a note made payable January 1st, 1865, "on condition that the banks of Tennessee have resumed specie payment at that time, if not, as soon

to said A. B. or order on return of this receipt," is a negotiable note in New York, Frank v. Wessels, 64 N. Y. 158 (1876).

'Smilie v. Stevens, 39 Vt. 315 (1866).

"Hodges v. Shaler, 22 N. Y. 114 (1860).

'Rose v. S. A. & M. G. R. R., 31 Tex. 49 (1868). But the renewal of such a note, made payable in four years and not referring to the construction of the road, will fall due in four years without reference to the completion of the railroad, Four Mile V. R. R. v. Bailey, 18 Ohio St. 208 (1868).

'Stevens v. Blunt, 7 Mass. 240 (1810); Bristol v. Warner, 19 Conn. 7 (1848); Goodloe v. Taylor, 3 Hawks 458 (1825); Levally v. Harmon, 20 Iowa 533 (1866). So, "as soon as can be collected out of the contract, and if not so collected, in four years," Smith v. Ellis, 29 Mo. 422 (1849).

'Weidler v. Kauffman, 14 Ohio 455 (1846). So, an order payable "in installments, $200 out of the first estimate or when the first floor joists are in, $200 when the building is ready for the roof," &c., Miller v. Excelsior Stone Co., 1 Ill. App. 273 (1878)..

"Husband v. Epling, 81 Ill. 172 (1876).

'Sackett v. Palmer, 25 Barb. 179 (1857). But in Scull v. Roane, Hempst. C. C. 103 (1831), it was held that a note payable on settlement of accounts was due in a reasonable time and might be sued after one year.

Brooks v. Hargreaves, 21 Mich. 254 (1870).

'Shelton v. Bruce, 9 Yerg. 24 (1836).

10 Henry v. Hazen, 5 Ark. 401 (1842).