Bryne v. Bryne

95 N.E. 88, 209 Mass. 179, 1911 Mass. LEXIS 921

Opinion

Morton, J.

It is plain, we think, that the instrument declared on is a promissory note. It is not a negotiable promissory note and is not declared on as such. The word “ payable ” in the connection in which it occurs imports a promise by the maker to pay at the time fixed the sum named. The promise is not one implied by law from an acknowledgment; of indebtedness, but is the maker’s own promise. It is not contended that the other elements necessary to constitute a promissory note are not included in the instrument declared on. See Kimball v. Huntington, 10 Wend. 675; Mitchell v. Rome Railroad, 17 Ga. 574; Carver v. Hayes, 47 Maine, 257; Pepoon v. Stagg, 1 Nott. & McC. 102; Cowan v. Hallack, 9 Col. 572; Waithman v. Elsee, 1 C. & K. 35; Richer v. Voyer, L. R. 5 P. C. 461, 476. The question whether the instrument was or was not a promissory note was one of law for the court and evidence that it was intended by the defendant as a memorandum merely was rightly excluded.

Exceptions overruled with double costs and interest at twelve per cent.