Noyes v. Gilman , 65 Me. 589 ( 1876 )

Peters, J.

We think the order can operate as an assignment of the note, but not as an independent negotiable instrument upon which this action can be maintained. The words “value received” are not in it, but they are not indispensable. Townsend v. Derby, 3 Metc., 363. Still it is some indication of what was in the minds of the'parties when the order was drawn. The order was not presented to the defendant. He was informed of it by letter. It does not appear how the order was described to him in the letter. But the answer is to the effect that he would pay the note (not the order) to the person in whose favor the order was drawn. If this was in any view an acceptance, it was only a conditional one. There is, at any rate, an implied understanding that the defendant will pay the note to such person upon the condition that he shall surrender the note when payment of it is made. When the maker pays the note he is entitled to its possession. The note is not completely described in the order. Its date and time of payment are not named. It is declared that it “was” $800. But, if there had been a partial payment on it, the defendant would be entitled to have the amount deducted when the note should be paid. Inasmuch as the order is not drawn for an absolutely certain sum, and would be payable only upon a contingency, it cannot be regarded as a negotiable instrument, and this action (by an indorsee) cannot be maintained. Hubbard v. Mosely, 11 Gray, 170. American Exchange Bank v. Blanchard, 7 Allen, 333.

Plaintiff nonsuit.

Appleton, O. J., Dickerson, Danforth, Yirgin and Libbey, JJ., concurred.