Tradesmen's National Bank of Philadelphia v. Green

Ritchie, J.,

delivered the opinion of the Court.

The judgment haying heen entered below for the defendants, present appellees, upon their general demurrer to the declaration, we have to determine in this appeal simply whether the demurrer was well taken. The appellees rest their demurrer upon two grounds : First, that the chose in action declared on is not a negotiable instrument, and therefore the plaintiff could not maintain the suit in its own name. Second, that the declaration is bad because it does not contain the averment “ for money payable by the defendants to the plaintiff.”

We concur with the appellees in not considering the instrument negotiable; because the time of its payment is uncertain, is subject to a contingency not inevitable, and it is made payable out of a particular fund. In Story on Promissory Notes, these characteristics are shown to he incompatible with negotiability, from the following sections :

“ 22. To make a written note for the payment of money a valid promissory note, the money must- he payable absolutely,,and at all events, and not be subject to any condition or contingency.”

“25. Where a written promise for money, which otherwise would be a good promissory note; is made payable out of a particular fund, so that the payment is to depend upon the existence or sufficiency of that fund, that will render it invalid as a promissory note.”

“ 27. To constitute a valid promissory note, it should be for the payment of money at some fixed period of time, or on some event which must inevitably happen.” See also Byleson Bills, (marginal) 95, 96, and Parsons on Bills and Notes, 42.

The instrument sued on being a chose in action not negotiable, an assignment of it in writing was necessary under our statute to enable the plaintiff to sue in its own name. In the absence of such an assignment, the suit *605 should have been instituted in the name of Petticord, to the use of the bank.

In the case of Owens vs. Hampton, 55 Md., 583 , this Court expressly decided, that, where the entire and exclusive interest in a bill of exchange or other negotiable chose in action is vested in the holder thereof, he cannot institute an action upon it in the name of another party. Assignments of other dioses in action not negotiable, entitle the assignee to sue in the name of the assignor for the use of the assignee, or in his own name, by virtue of Art. IX, sec. 1, of the Code.

There having been no assignment in writing of the instrument on which this suit was brought, the demurrer was well taken.

We deem it proper, however, to say further, as to the other ground of demurrer, that the words, “for money payable,” «fee., are omitted in the nan'., we do not think it necessary to state them where the cause of action is such as that sued upon. The appellees rely upon Merryman vs. Rider, 34 Md., 98 . But the declaration in that case contained simply four of the common counts, which down to thirteen, inclusive, are expressly required by the Code to be preceded by the words “ for money payable by the defendant to the plaintiff.” While deciding this requirement of the statute to be imperative, and stating these words to be of the gist of the indebitatus counts, which only were within the decision, it is evident from the comments upon certain cases referred to, the Court did not mean to pronounce these words essential where the instrument itself, whicli is the cause of action, and the averments of the nan'., show that the .debt was a money debt, and that it was due before the commencement of the suit. The Code confines their averment to the indebitatus counts, and dispenses with them in its forms for declarations on promissory notes, and other agreements which in terms provide for the payment of money, and for other causes *606 of action set forth, which in their nature are of similar import.

(Decided 25th February, 1882.)

Having already stated that the first objection to the narr. relied on is sufficient to sustain the demurrer, it follows that we concur in the ruling of the Court helow; and the judgment must he affirmed, hut without prejudice.

Judgment affirmed.