Worden v. Dodge

4 Denio 159

Opinion

By the Court, Beardsley, J.

The nonsuit was proper. A promissory note must be payable absolutely, and not upon any contingency as to time or event. (3 Kent, 5th ed. p. 74; Smith on Merc. Law. 113, 116; Story on Prom. Notes, §§ 1, 22 to 26; id. on Bills of Exch. §§ 46, 47; Chit. on Bills, 10th Amer. ed., p. 132 to 139.)

This was not such an engagement, for although the promise was to make payments at certain specified times, the payments were to be made “ out of the net proceeds ” “ of ore to be raised and sold ” from a certain ore bed. Here was a contingency; the fund might turn out to be inadequate, in which case there would be no obligation to pay at any time. It was not a promise to pay “ absolutely and at all events,” as a promissory note always is.

New trial denied.