Sherman v. Goble

4 Conn. 246

• Court: Supreme Court of Connecticut
• Decided: June 15, 1822
• Status: Published

Opinion

Hosmer, Ch. J.

In every action on promissory note, the plaintiff may declare in the words of the contract, or according to its legal effect. 1 Chitt. Plead. 299. On an inspection of the declaration only, it is impossible to say, which of these modes the pleader has elected. By praying oyer of the note and demurring, it was in the power of the defendant to have ascertained the fact, if he thought it material. The plaintiff, in support of his declaration, is entitled to have it considered, as descriptive of the terms of the contract; and to this point, the determination in Herrick v. Bennett, 8 Johns. Rep. 374. is express. In Bacon v. Page, 1 Conn. Rep. 404. the court merely decided, that the note declared upon did not appear to have become due; but the question whether the declaration was on the terms of the contract, or according to its legal effect, did not occur.

The case before us is of no imaginable difficulty. “A bill payable to a man’s own order,” said Lord Ellenborough, in Smith v. M'Clure, 5 East, 476. “is payable to himself, if he did not order it paid to any other;" and without the aid of this respectable authority, I should not have hesitated in believing this to be the legal construction of the contract. In the phraseology adopted among merchants, promissory notes, understood to be precisely of the same meaning, are indifferently drawn, payable to A. B. or order, or to the order of A. B.

Chapman, Brainard and Bristol, Js. were of the same opinion. Peters, J. not having been present, when the the case was argued, gave no opinion.

Judgment affirmed.