Tradesmen's National Bank of Philadelphia v. Green

Ritchie, J., delivered the opinion of the Court. The judgment haying heen entered below for the defendants, present appellees, upon their general demurrer to the declaration, we have to determine in this appeal simply whether the demurrer was well taken. The appellees rest their demurrer upon two grounds : First, that the chose in action declared on is not a negotiable instrument, and therefore the plaintiff could not maintain the suit in its own name. Second, that the declaration is bad because it does not contain the averment “ for money payable by the defendants to the plaintiff.” We concur with the appellees in not considering the instrument negotiable; because the time of its payment is uncertain, is subject to a contingency not inevitable, and it is made payable out of a particular fund.

In Story on Promissory Notes, these characteristics are shown to he incompatible with negotiability, from the following sections : “ 22. To make a written note for the payment of money a valid promissory note, the money must- he payable absolutely,,and at all events, and not be subject to any condition or contingency.” “25. Where a written promise for money, which otherwise would be a good promissory note; is made payable out of a particular fund, so that the payment is to depend upon the existence or sufficiency of that fund, that will render it invalid as a promissory note.” “ 27. To constitute a valid promissory note, it should be for the payment of money at some fixed period of time, or on some event which must inevitably happen.” See also Byleson Bills, (marginal) 95, 96, and Parsons on Bills and Notes, 42.

The instrument sued on being a chose in action not negotiable, an assignment of it in writing was necessary under our statute to enable the plaintiff to sue in its own name. In the absence of such an assignment, the suit ⁶⁰⁵ should have been instituted in the name of Petticord, to the use of the bank. In the case of Owens vs. Hampton, 55 Md., 583 , this Court expressly decided, that, where the entire and exclusive interest in a