Worden v. Dodge
New York Supreme Court
Assumpsit. On the trial the plaintiff gave in evidence an agreement, signed by the defendants, bearing date October 12, 1839, by which, for value received, they jointly and severally promised to pay to the plaintiff, by his name or order, §250, with interest, payable one half in two years and the other half in three years from the day of said agreement, “ out of the net proceeds, after paying the costs and expenses of ore to be raised and sold from the bed on the lot this…
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Assumpsit. On the trial the plaintiff gave in evidence an agreement, signed by the defendants, bearing date October 12, 1839, by which, for value received, they jointly and severally promised to pay to the plaintiff, by his name or order, §250, with interest, payable one half in two years and the other half in three years from the day of said agreement, “ out of the net proceeds, after paying the costs and expenses of ore to be raised and sold from the bed on the lot this day conveyed by Edward Madden to Edwin Dodge, which bed is to be opened and the ore disposed of as soon as conveniently…
1Opinion of the Court
By the Court, Beardsley, J.
The nonsuit was proper. A promissory note must be payable absolutely, and not upon any contingency as to time or event. (3 Kent, 5th ed. p. 74; Smith on Merc. Law. 113, 116; Story on Prom. Notes, §§ 1, 22 to 26; *160id. on Bills of Exch. §§ 46, 47; Chit. on Bills, 10th Amer. ed., p. 132 to 139.)
This was not such an engagement, for although the promise was to make payments at certain specified times, the payments were to be made “ out of the net proceeds ” “ of ore to be raised and sold ” from a certain ore bed. Here was a contingency; the fund might turn out to be…
2Cited by6 opinions
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- District Landowners Trust v. DohertySupreme Court of Colorado · 1934
- Herter v. Goss & Edsall Co.Supreme Court of New Jersey · 1894
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