Gaytes v. Hibbard

U.S. Circuit Court for the Northern District of Illnois

Gaytes v. Hibbard

10 F. Cas. 125, 5 Biss. 99

CourtU.S. Circuit Court for the Northern District of Illnois

DecidedJune 15, 1869

StatusPublished

This text of 10 F. Cas. 125 (Gaytes v. Hibbard) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the Northern District of Illnois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gaytes v. Hibbard, 10 F. Cas. 125, 5 Biss. 99 (circtndil 1869).

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Opinion

DRUMMOND, District Judge.

In support of the demurrer it is insisted that the instrument sued on is not a promissory note; that it is not certain as to the person to whom the money was payable, it being to the Mercantile Mutual Fire Insurance Company or its treasurer for the time being. Secondly, that it is not certain as to the time of payment, thefe being no time specified in the instrument when the money was to be paid. [126]*126And, thirdly, that there is no certainty In relation to the fact of payment at all.

NOTE. A written promise to pay a sum “in such manner and proportions, and at such time and place as he shall from time to time require,” is a promissory note. Goshen, etc., Turnpike Co. v. Hurtin, 9 Johns. 217; Washington Co. Mut. Ins. Co. v. Miller, 26 Vt. 77. An instrument as follows: “I promise to pay M. $172 when I collect a note received from him on T.,” is due and payable on the occurrence of the contingency. Walker v. Phillips, 35 Tex. 784. For a full exposition of the maxim “Id certum est quod certum reddi potest,” consult Broom, Leg. Max. 599.

I do not know that it is necessary for the court to decide whether this was a “promissory note,” technically so called. The question is, whether the count in the declaration is sufficient It avers that the directors of the company did require a certain portion of the $250 to be paid at a fixed time, naming the time, and that the money was not paid at that time, and that, by the charter of the company, the whole sum became payable.

I hold this to be a contract, In substance, to pay two hundred and fifty dollars to the Mercantile Mutual Fire Insurance Company of Chicago; the words “or the treasurer for the time being,” being simply, I think,' indicative that the money might be paid to ■ the company through its treasurer.

Then the time at which payment was to - be made became certain when the directors. of the company, agreeably to their act of incorporation, fixed the time requiring the money to be paid. So, according to the rule, “Id certum est quod certum reddl potest,” it will become certain precisely on the same principle as money payable on demand. There the time when it is payable is uncertain. It - does not technically become payable until the demand is made. The demand having been made, that which was uncertain has become certain. So here, this is in the nature of a demand by the ' directors -of the company to make payment, - and when that demand is made, then the \ time is fixed and certain. . -

I think the demurrer must be overruled, with leave to the defendants to plead if they so elect.

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DRUMMOND, District Judge.

In support of the demurrer it is insisted that the instrument sued on is not a promissory note; that it is not certain as to the person to whom the money was payable, it being to the Mercantile Mutual Fire Insurance Company or its treasurer for the time being. Secondly, that it is not certain as to the time of payment, thefe being no time specified in the instrument when the money was to be paid. [126]*126And, thirdly, that there is no certainty In relation to the fact of payment at all.

NOTE. A written promise to pay a sum “in such manner and proportions, and at such time and place as he shall from time to time require,” is a promissory note. Goshen, etc., Turnpike Co. v. Hurtin, 9 Johns. 217; Washington Co. Mut. Ins. Co. v. Miller, 26 Vt. 77. An instrument as follows: “I promise to pay M. $172 when I collect a note received from him on T.,” is due and payable on the occurrence of the contingency. Walker v. Phillips, 35 Tex. 784. For a full exposition of the maxim “Id certum est quod certum reddi potest,” consult Broom, Leg. Max. 599.

I do not know that it is necessary for the court to decide whether this was a “promissory note,” technically so called. The question is, whether the count in the declaration is sufficient It avers that the directors of the company did require a certain portion of the $250 to be paid at a fixed time, naming the time, and that the money was not paid at that time, and that, by the charter of the company, the whole sum became payable.

I hold this to be a contract, In substance, to pay two hundred and fifty dollars to the Mercantile Mutual Fire Insurance Company of Chicago; the words “or the treasurer for the time being,” being simply, I think,' indicative that the money might be paid to ■ the company through its treasurer.

Then the time at which payment was to - be made became certain when the directors. of the company, agreeably to their act of incorporation, fixed the time requiring the money to be paid. So, according to the rule, “Id certum est quod certum reddl potest,” it will become certain precisely on the same principle as money payable on demand. There the time when it is payable is uncertain. It - does not technically become payable until the demand is made. The demand having been made, that which was uncertain has become certain. So here, this is in the nature of a demand by the ' directors -of the company to make payment, - and when that demand is made, then the \ time is fixed and certain. . -

I think the demurrer must be overruled, with leave to the defendants to plead if they so elect.

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Bluebook (online)

10 F. Cas. 125, 5 Biss. 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaytes-v-hibbard-circtndil-1869.

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