Mitchell, J.
The only point raised on this appeal is whether the instruments sued on are promissory notes, for, if they are, they are unquestionably negotiable under the law merchant. They are promises to pay specified sums of money in St. Paul, “with current exchange on New York City;” and the only question is whether this provision as to exchange renders the sums required to discharge them uncertain, within the meaning of the familiar rale that one of the essential qualities of a promissory note is that the amount to be paid must be fixed and certain, and not contingent. In the definitions of a promissory note or bill of exchange it is generally, if not always, stated that the amount necessary to discharge it must be ascertainable from the face of the paper itself, without haying to refer to any extrinsic evidence. Construing this definition literally, it must be admitted that the instruments in question do not strictly fall within it, for, of course, extrinsic evidence must be resorted to in order to ascertain the rate of exchange at a given time between two places. Upon examination of the reports and text-books it is surprising how little direct authority of any value is to be found as to the effect of the addition of such a provision to an instrument for the payment of money. Daniel, Randolph, and Tiedeman state in general that such a provision does not affect the commercial or negotiable character of [187]*187the paper, but none of them discuss it at any length, and all of them treat of the question as if it only went to the negotiability of the instruments, whereas the real question lies back of that, and is whether they are promissory notes or hills of exchange at all. Tied. Com. Paper, § 28a; Rand. Com. Paper, § 200; Daniel, Neg. Inst. § 54. We hare found no English case directly in point, and none bearing on the question, except Pollard v. Harries, 3 Bos. & P. 335, where such an instrument was declared on as a promissory note. If the question was authoritatively settled in the leading commercial states of the Union or in the Federal Courts, we would be inclined, for the sake of uniformity, to follow their decisions; but we have been unable to find that the supreme court of the United States, or of either Massachusetts, New York, or Pennsylvania, has ever passed upon the question. The only cases, state, federal, or colonial, which we have found which may be considered as having passed on the question, are the following, which may be classified thus: That such instruments are not promissory notes: Lowe v. Bliss, 24 Ill. 168; Read v. McNulty, 12 Rich Law, 445; Carroll Co. Sav. Bank v. Strother, 28 S. C. 504, (6 S. E. Rep. 313); Palmer v. Fahnestock, 9 Up. Can. C. P. 172; Saxton v. Stevenson, 23 Up. Can. C. P. 503; Philadelphia Bank v. Newkirk, 2 Miles, 442; New Windsor Bank v. Bynum, 84 N. C. 24; Russell v. Russell, 1 MacAr. 263; Fitzharris v. Leggatt, 10 Mo. App. 527; Hughitt v. Johnson, 28 Fed. Rep. 865; Windsor Sav. Bank v. McMahon, 38 Fed. Rep. 283. That such instruments are promissory notes: Smith v. Kendall, 9 Mich. 242; Johnson v. Frisbie, 15 Mich. 286; Leggett v. Jones, 10 Wis. 35; Morgan v. Edwards, 53 Wis. 599, (11 N. W. Rep. 21;) Bradley v. Lill, 4 Biss. 473. In very few of these cases is the question discussed at any length, or considered on principle. Some of them were decided by courts of inferior jurisdiction, and in others the remarks of the court were obiter. Many of those which hold that such instruments are not promissory notes rest, without discussion, upon a strict literal construction of the rule that the sum to be paid must appear from the face of the paper without resort to extrinsic evidence. About the only cases where the question is discussed at any length upon principle or authority [188]*188are Smith v. Kendall, Bradley v. Lill, Morgan v. Edwards, and Windsor Sav. Bank v. McMahon, supra.
In view of this state of the decisions, while in mere numbers the decided weight of authority may be in favor of the contention of the defendant, we feel at liberty to decide the question in the way we deem most in accordance with principle and business usages, and in accordance with the rule which, in view of such usages, the leading courts of the country are most likely to finally settle down upon. The following are, in brief, the considerations which have led us to the conclusion that such instruments ought to be held to be promissory notes under the law merchant:
1. The reason and purpose of the rule that the sum to be paid must be certain is that the parties to the instrument may know the amount necessary to discharge it, without investigating facts not within the general knowledge of every one, and which may be subject to more or less uncertainty, or more or less under the influence or control of one or other of the parties to the instrument.. The provision for the payment of the current rate of exchange between the place of payment and some other place is not within the reason of this rule, or subject to the evils or inconveniences which it wa^f designed to prevent. While the rate of exchange is not always the same, and while it is technically true that resort must be had to. éxtrinsie evidence to ascertain what it is, yet the current rate of exchange between two places at a particular date is a mat-ter of common commercial knowledge, or at least easily ascertainable by apy one, so that the parties can always, without difficulty, ascertain the exact amount necessary to discharge the paper. It seems to us that within the spirit of the rule requiring precision-in the amount to be paid a provision for the payment of the current rate of exchange in addition to the principal amount named does not introduce such an element of uncertainty as deprives the instrument of the essential qualities of a promissory note. A provision for the payment of exchange is very different from one for the payment of reasonable attorneys’fees in case of suit, as in Jones v. Radatz, 27 Minn. 240, (6 N. W. Rep. 800.) The latter introduces an element of uncertainty very different both in kind and degree, from that introduced by the former. Not only is the amount o 11 [189]*189the attorneys’ fees incapable of either easy or definite ascertainment, but the amount of it is more or less under the control of the holder of the instrument. Moreover, such a provision has never been considered in business circles as properly ancillary or incidental to commercial paper, or any part of its legitimate “luggage.”
2. The law merchant, including the law of negotiable paper, is founded upon, and is the creature of, commercial usage and custom. Custom and usage have really made the law, and courts, in their decisions, merely declare it. The law of negotiable paper is not only founded on commercial usage, but is designed to be in aid of trade and commerce. Its rules should, therefore, be construed with reference to and in harmony with general business usages, ■and, as far as possible, with the common understanding in commercial circles. This was the very purpose of the statute of Anne placing promissory notes on the same footing as bills of exchange, ■and thus setting at rest a question upon which there had been some difference of opinion in the courts.
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Mitchell, J.
The only point raised on this appeal is whether the instruments sued on are promissory notes, for, if they are, they are unquestionably negotiable under the law merchant. They are promises to pay specified sums of money in St. Paul, “with current exchange on New York City;” and the only question is whether this provision as to exchange renders the sums required to discharge them uncertain, within the meaning of the familiar rale that one of the essential qualities of a promissory note is that the amount to be paid must be fixed and certain, and not contingent. In the definitions of a promissory note or bill of exchange it is generally, if not always, stated that the amount necessary to discharge it must be ascertainable from the face of the paper itself, without haying to refer to any extrinsic evidence. Construing this definition literally, it must be admitted that the instruments in question do not strictly fall within it, for, of course, extrinsic evidence must be resorted to in order to ascertain the rate of exchange at a given time between two places. Upon examination of the reports and text-books it is surprising how little direct authority of any value is to be found as to the effect of the addition of such a provision to an instrument for the payment of money. Daniel, Randolph, and Tiedeman state in general that such a provision does not affect the commercial or negotiable character of [187]*187the paper, but none of them discuss it at any length, and all of them treat of the question as if it only went to the negotiability of the instruments, whereas the real question lies back of that, and is whether they are promissory notes or hills of exchange at all. Tied. Com. Paper, § 28a; Rand. Com. Paper, § 200; Daniel, Neg. Inst. § 54. We hare found no English case directly in point, and none bearing on the question, except Pollard v. Harries, 3 Bos. & P. 335, where such an instrument was declared on as a promissory note. If the question was authoritatively settled in the leading commercial states of the Union or in the Federal Courts, we would be inclined, for the sake of uniformity, to follow their decisions; but we have been unable to find that the supreme court of the United States, or of either Massachusetts, New York, or Pennsylvania, has ever passed upon the question. The only cases, state, federal, or colonial, which we have found which may be considered as having passed on the question, are the following, which may be classified thus: That such instruments are not promissory notes: Lowe v. Bliss, 24 Ill. 168; Read v. McNulty, 12 Rich Law, 445; Carroll Co. Sav. Bank v. Strother, 28 S. C. 504, (6 S. E. Rep. 313); Palmer v. Fahnestock, 9 Up. Can. C. P. 172; Saxton v. Stevenson, 23 Up. Can. C. P. 503; Philadelphia Bank v. Newkirk, 2 Miles, 442; New Windsor Bank v. Bynum, 84 N. C. 24; Russell v. Russell, 1 MacAr. 263; Fitzharris v. Leggatt, 10 Mo. App. 527; Hughitt v. Johnson, 28 Fed. Rep. 865; Windsor Sav. Bank v. McMahon, 38 Fed. Rep. 283. That such instruments are promissory notes: Smith v. Kendall, 9 Mich. 242; Johnson v. Frisbie, 15 Mich. 286; Leggett v. Jones, 10 Wis. 35; Morgan v. Edwards, 53 Wis. 599, (11 N. W. Rep. 21;) Bradley v. Lill, 4 Biss. 473. In very few of these cases is the question discussed at any length, or considered on principle. Some of them were decided by courts of inferior jurisdiction, and in others the remarks of the court were obiter. Many of those which hold that such instruments are not promissory notes rest, without discussion, upon a strict literal construction of the rule that the sum to be paid must appear from the face of the paper without resort to extrinsic evidence. About the only cases where the question is discussed at any length upon principle or authority [188]*188are Smith v. Kendall, Bradley v. Lill, Morgan v. Edwards, and Windsor Sav. Bank v. McMahon, supra.
In view of this state of the decisions, while in mere numbers the decided weight of authority may be in favor of the contention of the defendant, we feel at liberty to decide the question in the way we deem most in accordance with principle and business usages, and in accordance with the rule which, in view of such usages, the leading courts of the country are most likely to finally settle down upon. The following are, in brief, the considerations which have led us to the conclusion that such instruments ought to be held to be promissory notes under the law merchant:
1. The reason and purpose of the rule that the sum to be paid must be certain is that the parties to the instrument may know the amount necessary to discharge it, without investigating facts not within the general knowledge of every one, and which may be subject to more or less uncertainty, or more or less under the influence or control of one or other of the parties to the instrument.. The provision for the payment of the current rate of exchange between the place of payment and some other place is not within the reason of this rule, or subject to the evils or inconveniences which it wa^f designed to prevent. While the rate of exchange is not always the same, and while it is technically true that resort must be had to. éxtrinsie evidence to ascertain what it is, yet the current rate of exchange between two places at a particular date is a mat-ter of common commercial knowledge, or at least easily ascertainable by apy one, so that the parties can always, without difficulty, ascertain the exact amount necessary to discharge the paper. It seems to us that within the spirit of the rule requiring precision-in the amount to be paid a provision for the payment of the current rate of exchange in addition to the principal amount named does not introduce such an element of uncertainty as deprives the instrument of the essential qualities of a promissory note. A provision for the payment of exchange is very different from one for the payment of reasonable attorneys’fees in case of suit, as in Jones v. Radatz, 27 Minn. 240, (6 N. W. Rep. 800.) The latter introduces an element of uncertainty very different both in kind and degree, from that introduced by the former. Not only is the amount o 11 [189]*189the attorneys’ fees incapable of either easy or definite ascertainment, but the amount of it is more or less under the control of the holder of the instrument. Moreover, such a provision has never been considered in business circles as properly ancillary or incidental to commercial paper, or any part of its legitimate “luggage.”
2. The law merchant, including the law of negotiable paper, is founded upon, and is the creature of, commercial usage and custom. Custom and usage have really made the law, and courts, in their decisions, merely declare it. The law of negotiable paper is not only founded on commercial usage, but is designed to be in aid of trade and commerce. Its rules should, therefore, be construed with reference to and in harmony with general business usages, ■and, as far as possible, with the common understanding in commercial circles. This was the very purpose of the statute of Anne placing promissory notes on the same footing as bills of exchange, ■and thus setting at rest a question upon which there had been some difference of opinion in the courts. Now, we think we are safe in saying, and justified in taking notice of the fact, that if bankers or other business men accustomed to dealing in commercial paper were asked whether such an instrument is a promissory note, and whether they would deal with it as negotiable paper, the ans-wers would, in almost every instance, be unhesitatingly in the affirmative. We have no doubt but that this is the way in which such paper is generally looked upon and treated in commercial and other business circles; and, if so, the courts should, as far as possible, make their decisions to conform to this general custom and understanding. We recognize the importance of simplicity and certainty in the terms and conditions of commercial paper; and appreciate the objections to permitting it to be loaded down' with unnecessary “luggage,” but we cannot see, under all the circumstances, and especially in view of what we believe to be the ■commercial usage, that any practical evil will result from permitting the addition of such a provision for the payment of current exchange on the principal amount. Nor are we disposed, as a rule, to extend the quality of negotiable paper to contracts for the payment of money beyond the strict limits of the already established rules of law; but to exclude from that category paper like that under consideration would be to exclude the very class of paper [190]*190which, ought to be held negotiable, if any promissory notes ought to be so held, — paper given and talcen in commercial transactions, properly so called; for rarely, if ever, would a provision for exchange be incorporated in any other.
(Opinion published 55 N. W. 968.)
Order reversed.
Application for reargument denied July 20,1893.