Bills and Notes. Contract, In writing. Evidence, Extrinsic affecting writings. Words, "Payable."
The following instrument, "Boston, Mass., September 3, 1903. Borrowed and received from George M. Bryne, five hundred and eighty-five dollars, payable April 1, 1904, with interest at six per cent. J.L. Bryne," is as matter of law a non-negotiable promissory note, and its maker, when sued on it as such, cannot be allowed to show that he intended it to be only a memorandum.
MORTON, J.
It is plain, we think, that the instrument declared on is a promissory note. It is not a negotiable promissory note and is not declared on as such. The word "payable" in the connection in which it occurs imports a promise by the maker to pay at the time fixed the sum named. The promise is not one implied by law from an acknowledgment of indebtedness, but is the maker's own promise. It is not contended that the other elements necessary to constitute a promissory note are not included in the instrument declared on. See Kimball v. Huntington, 10 Wend. 675; Mitchell v. Rome Railroad, 17 Ga. 574; Carver v. Hayes, 47 Maine, 257; Pepoon v. Stagg, 1 Nott. McC. 102; Cowan v. Hallack, 9 Col. 572; Waithman v. Elsee, 1 C. K. 35; Richer v. Voyer, L.R. 5 P.C. 461, 476. The question whether the instrument was or was not a promissory note was one of law for the court and evidence that it was intended by the defendant as a memorandum merely was rightly excluded.
Exceptions overruled with double costs and interest at twelve per cent.