Confusion on this point has arisen in recent cases of promises to pay at a time stated or before,' at the maker's election.1 But the instrument is payable at the time stated at all events; the time of payment is certain to come to pass; the maker may choose to shorten the matter, - that is all. Another difficulty with such cases, arising from the fact that the total sum payable is in one sense uncertain, has already been noticed.3

Time not

reasonable

No time of payment at all need be stated; the paper in that case will in law be payable on demand, and that, as has already been stated, is enough. The common cheque is a familiar example. An undertaking to pay within named: a reasonable time is said to meet the requirement of time: when the law merchant; for a reasonable time is deemed convenient.' sure to come. And undertakings have been construed as performable within a reasonable time where the matter of time was left wholly indefinite in the language used. The courts have indeed gone far beyond custom in interpreting 'reasonable time.' For example: I promise to pay to A or order, $1000 when convenient' is construed a promise to pay within reasonable time, and hence within a time certain. Again: 'I promise to pay to A or bearer $75, one year from date, and if there is not enough realized by good management in one year, to have more time to pay,' is construed to be a promise to pay within a year, or at the end of a reasonable time thereafter, if enough should not be realized out of the business within a year; and the promise is thus deemed to be performable at a time certain."

5

Cases of the kind under consideration may perhaps be considered more properly as deciding that the instrument provides a time of payment rather than it is an instrument of the law merchant." In that view such instruments are simply valid

1 Stults v. Silva, 119 Mass. 137; Way v. Smith, 111 Mass. 523; Hubbard v. Mosely, 11 Gray, 170.

2 Helmer v. Krolich, 36 Mich. 371; Mattison v. Marks, 31 Mich. 421. 3 Ante, p. 30.

4 Messmore v. Morrison, 172 Penn. St. 300.

6 Works v. Hershey, 35 Iowa, 340.

Capron v. Capron, 44 Vt. 410.

See Page v. Cook, 164 Mass. 116 (‘On demand after date payable

contracts of the common law; certainly they are not instruments of the custom of merchants. It should be noticed that such cases call for external evidence of liability; which should prevent them from having a place in the law merchant.

Payment in

The time of payment may be put at the election of the holder not merely by making the instrument payable in one payment on demand, but by making it payable in parts at instalments. the pleasure of the holder. For example: 'I promise to pay to A $125 in such manner and proportion, and at such times and place, as A may require' is payable absolutely, being payable in law in instalments on demand.1

Indeed, the time of payment may perhaps be put in the alternative, one of the alternatives being wholly uncertain, if Alternative the holder has his election which of the alternatives to take; that is, if the holder has the right to insist upon payment, at the time certain set in the instrument, the law merchant appears to be satisfied.

time.

How signature may be made:

mark.

Any of these instruments may be signed in pencil as well as in ink; and though it is unusual to sign in any other way than by writing the name, that is not necessary, provided only the signature adopted was intended as an execution of the particular contract. Any party may sign with his mark though able to write his name, and with the same effect in law as if he had written his signature, or he may substitute for his name a cipher, figures, or what he will; but if the name of the party is not signed, the holder has it to show that what the party did write was intended to answer

when payor and payee mutually agree'); Black v. Bachelder, 120 Mass. 171 ('payable as convenient '); Hawkins v. Graham, 149 Mass. 284; White v. Snell, 5 Pick. 425.

1 Goshen Turnpike v. Hurtin, 9 Johns. 217. See Washington Ins. Co. v. Miller, 26 Vt. 77; White v. Smith, 77 Ill. 351.

443.

Geary v. Physic, 5 Barn. & C. 234; Brown v. Butchers' Bank, 6 Hill,

Bliss v. Johnson, 162 Mass. 328.

the purpose of a signature.

There must be a signature in some form upon the paper itself. It could not be shown that the want of a signature was due to mistake or oversight; though a suit in equity might, it seems, be maintained in a proper case to correct an omission in signing due to mistake."

1 See Brown v. Butchers' Bank, supra, where the figures 1, 2, 8' were held a good indorsement on evidence of the intention; and the same case, referring to George v. Surrey, Moody & M. 516, as to signature by mark.

2 See Lancaster Bank v. Taylor, 100 Mass. 18; Beard v. Dedolph, 29 Wis. 136; Brown v. McHugh, 35 Mich. 50, 52. These are cases of omitted indorsement; but the principle is probably general.

Maker's contract appears in terms.

CHAPTER IV.

MAKER'S CONTRACT.

§ 1. NATURE: SIGNATURE.

THE contract of the maker of a promissory note differs in one respect from that of any other party to a contract of the law merchant; the writing itself shows, apart from grace, what the contract, in terms, is. One has but to read the note to see that it is an absolute undertaking to pay. No demand of payment is necessary to fix the maker's liability. And besides the express undertaking to pay, the maker, as incident to his contract, admits, in law, the existence of the payee (if a payee purporting to be an existing person is named), and his capacity at that time to indorse the instrument if it is payable to order.

The contract of the maker may be executed in any way, so far as his signature is concerned. By custom the maker signs the How executed: note at the right lower corner; but the courts end of note. appear to have considered the custom as not binding. The name written by him in any part of the instrument has been treated as a sufficient signature if that was the intention. It may accordingly be written in the body of the promise, as where the note reads, 'I, A B, promise to pay,' etc., provided that it was intended that the name as written there should answer the purpose of a signature. The Statute makes no change; it simply defines a (negotiable) promissory note as a promise in writing, signed by the maker,' without limitation

1 Evidence is inadmissible to show that an oral agreement to renew the note was made. Woods Co. v. Schaeffer, 173 Mass. 443; Hall v. First National Bank, id. 16; Heist v. Hart, 73 Penn. St. 289. Much less, that the maker was not to be held liable. Gumz v. Giegling, 108 Mich. 295.

2 N. I. L. § 67.

Taylor. Dobbin, 1 Strange, 399.

in regard to the place of the signature. The courts have applied to the case a doctrine of the common law.

There is this distinction, however: Where the signature is placed at the end of the note, the intention is fixed; the signing in that way is an execution of the note as matter of law, in the absence of fraud practised upon the maker in regard to the instrument itself. But if the signature be out of the usual place, it is then a question of fact whether the supposed signature was intended as an execution of the instrument; the bur len being upon the holder to show that it was so intended.2

The simplest kind of contract is the one now assumed to be in question, where the promise is made by one person only. That is the typical case, the case from which all others are more or less variants.

§ 2. JOINT AND SEVERAL SIGNATURE.

nature.

The note may be signed by more than one person; and then,' according to the intention manifested, it will be the several note of each, or the joint note of all, or it will be either What constithe one or the other as the holder may choose to tutes joint sigtreat it. The question which of these it is, will be a question to be ascertained from the writing itself. The language of the note may in terms state the intention; as where it reads, "We jointly promise,' or 'We jointly and severally,' or 'We or either of us,' or 'I, A B, as principal, and I, C D, as surety, jointly and severally promise;' or the language may not in terms declare the intention. In the latter case the intention is a matter for construction, on the language used, the rule whereof appears to be this: If there is nothing to indicate a different intention, the promise of the makers is to be deemed joint. For example (hypothetical): 'We promise to pay to A or order $1000, six months from date,' followed by the signal tures of the makers, would be a joint promissory note, as there is deemed to be nothing in the language to indicate that the

1 N. I. L. § 191.

2 Compare In re Booth, 127 N. Y. 109; Watts v. Pub. Admr., 4 Wend. 168; Catlett v. Catlett, 55 Mo. 330; Armstrong v. Armstrong, 29 Ala. 538. These are cases of wills.