
    Davis et al. v. Garr.
    
      Promissory Note. — Sv/rplusage.—Usury.—Limitation.
    An instrument, whereby the maker promises to pay a sum of money to three persons, as trustees of an unincorporated association, or their successors in office, is a promissory note, on which the payees may maintain an action, though others have succeeded them, as trustees.
    In a declaration on such note, an averment of a promise to pay to the plaintiffs “ as such trustees,” is good ; the latter phrase may be rejected, as surplusage.
    A note made in another state, designating no place of payment, “ with interest at the rate of eight per cent.,” is not usurious, unless it be shown, that the laws of the state where it was made, prohibit such rate of interest.
    Where a debtor resides without the state, when the cause of action accrues, and continues to reside there until his decease, the statute of limitations only begins to run from the time of granting administration here.
    * Appeal from the general term of the Supreme ^ Court, in the first district, where a judgment of the Superior Court of the city of New York, in favor of the plaintiffs, had been affirmed.
    This was an action of assumpsit by Charles A. Davis and Louis McLane, describing themselves as survivors of “Charles A. Davis, Louis McLane and Joseph M, White, trustees of the Apalachicola Land Company,” against the defendant, as administrator of Colin Mitchell, deceased, upon three promissory notes, in the following form:
    “ $4492.50. Apalachicola, April 21,1836.
    Twelve months after date, I promise to pay to Joseph M. White, Charles A. Davis and Louis McLane, Trustees of the Apalachicola Land Company, or their successors in. office, or order four thousand, four hundred and ninety-two dollars and fifty cents, with interest from date, at eight per cent, per annum, for value received.
    Colin Mitchell.”
    The declaration contained three counts upon the respective notes; and a fourth, for work and labor, goods sold, moneys lent, &c. In each of the first three counts, the plaintiffs' averred a promise to pay to them and the said Joseph M. White, “as such trustees as aforesaid,!’ .. *and a breach in not paying to the plaintiffs J and the said Joseph M. White, “ as such trustees as aforesaid.”
    To the first and second counts, the defendants pleadéd : 1. That before the commencement of the suit, the term of office - of the plaintiffs, as trustees of the said company, ' had expired, and that other persons (naming them) had been appointed in their place, in whom alone the right of demanding and receiving payment on the note was vested. ■ 2. That the action did not accrue at any time within six years prior to the commencement of the suit. 3. Set-off. ■ To the third count, the pleas were substantially the same, except that in the first plea it was alleged, that before the note declared on became due, the term of office of the plaintiffs, as such trustees, had expired, and other persons had been appointed-in their place, &c. To the fourth count, the defendant pleaded the statute óf limitations only.
    The plaintiffs demurred' specially to each of defendant’s first pleas,"on the following grounds: That the said Apalachicola Land Company is a private and voluntary association of individuals, or copartnership for the sale of lands, represented by the plaintiffs as their trustees; and the -contract in said count mentioned was madé with said plaintiffs, under said description, for the benefit of said private association, and the cause ■ of action upon the same, in case of breach, vested in them-, and did not, by operation of law, pass to any new set of trustees created thereafter. That the words ‘Trustees of the Apalachicola Land Company’ are words of description in the law, and do not create an office recognised in law through which a right of action can be transferred. That if the contract, from such its tenor, can be considered as giving a cause of action to subsequent trustees, upon a breach of a contract to prior trustees, it is at the *option of the holder of the note in question to sue in the name of either. *- And also, for that the said plea amounts to the general issue, and is, in other respects, uncertain, informal and insufficient.” The. defendant joined in demurrer.
    The plaintiffs replied to the plea of the statute of limitations, that when the cause of action accrued,, and until the time of his decease, the intestate resided out of the state; that administration was granted to the defendant, on the first day of June 1844, and that the action was brought within six years thereafter. To each of these replications to the pleas of the statute of limitations to the first three counts, the defendant rejoined, that the promise was not made to be performed within the jurisdiction and limits of this state, but was made to be performed in Florida; that the intestate and White, one of the trustees mentioned, resided there until their respective deaths; that JMcLane, another of the said trustees, resided in the state of Maryland, and that the intestate died in August 1839, more than six years before the commencement of this suit. That the intestate had no assets within the limits and jurisdiction of this state, when the note was made and the cause of' action accrued. The plaintiffs demurred specially to each of these rejoinders; in that the rejoinder does not answer any part of the replication to which it purports to be an answer; that it tenders immaterial issues, and is double.
    To the replication to the plea of the statute of limitations pleaded to the fourth count, the defendant rejoined, that the intestate, after the making the promise in that count mentioned, returned into this state, and that the suit was not brought within six years next after his return. The plaintiffs took issue upon the return of the intestate to this state, after making the promise, as alleged in the rejoinder. Issue was also joined on the pleas of set-off.
    The court gave judgment for the plaintiffs upon all the demurrers; and appointed a referee to determine *the issues of fact, and assess the plaintiffs’ -1 damages under the counts upon the notes. The referee reported that the defendant, as administrator, was indebted to the plaintiffs, upon the notes, in the sum of $16,843.93; and that the intestate did return into the state, after the making of the promise alleged in the 4th count. Judgment was, thereupon, perfected in favor of the plaintiffs, for the amount found by the referee, upon the first three counts; and upon the 4th-count judgment was entered in favor- of the defendant. This judgment having been affirmed by the supreme court, the defendant took this appeal.
    
      Garr, the appellant, in propriâ personâ.
    
    
      Hoffman, for the respondents.
   *Gardiner, J.

— The first objection presented -* by the pleadings on the part of the defendant is, that the written instruments set forth in the declaration are payable to the trustees therein named, or their sue-' cessors in office, and that the uncertainty as to which of the two, the payment is to be made, invalidates them as promissory notes, though not as agreements. I am unable to perceive any such contingency in the contract.

If the plaintiffs are to be considered as the representatives of a corporation, and the suit instituted for the benefit of their principal, the payment must be made to them, as trustees. If their term of office expired, before the commencement of the suit, then, and in that event only, would a right of action inure to their successors. There never was a time, consequently, when the maker of the notes could discharge himself by a payment made, at his election, to these plaintiffs, or their successors. The term successors, implies one who takes a place that another has left. It might be as reasonably contended, that the payee was contingent, where a note was made payable to A., or his executors or administrators, &c.

It has been determined, that an undertaking to pay C. or D., or his or their order, is not a promissory note; "because payable to either of the payees, and that only on the contingency of its not being paid to the other. (Story on Prom. Notes § 37; 4 Wend. 575; 2 B. & Aid. 417.) The distinction between those cases (even if the doctrine thereby established is sound) and the present, is, that the contingency in them was apparent on the face of the instrument. Here, there was no uncertainty in the contract, when the notes were made, or became payable; the ambiguity, if any, would arise from a change of trustees, after the note took effect as a per fected contract.

*Secondly, if the plaintiffs were not the representatives of a corporation, as the defendant insist, they could sustain the action in their own name ; the word trustees,” would be merely a designation of the persons, and ■ the phrase their successors,” may be rejected as surplusage. It has been decided, that a note payable to a trustee, or agent, or executor, will sustain a suit in the name of the person mentioned. (3 Harrington 385; 3 Mass. 103; 2 English (Ark.) 382. And see 9 Johns. 334; 8 Cowen 31, and cases there cited.) I think, therefore, that these contracts are promissory notes, and, consequently, negotiable. [ *133

2. It is said, the declaration is bad, because it is not the action of the plaintiffs, as individuals suing in their own right, but a suit by them, as “ trustees” of a company. A contract payable to the trustees of a - company, not incorporated, would not be a note, within our statute. But there is no averment or pretense that the Apalachicola Land Company was ever incorporated; and if not, there cannot be a contract with the plaintiffs, as, trustees. The allegation of a promise to them as trustees,” is repugnant to the contract, as, stated, and the other distinct averments in the declaration. They are, therefore, to be rejected as unnecessary. (1 Chitty on Plead. 265.) Again, the expression “ trustees of the Apalachicola .Land Company,” indicates the relation in which the payees of the note stand to the company, but that does not affect their legal right in, and their right to sue in their own names, wpon the contract.

3. It is insisted, that the action should have been brought in the names of the individuals composing the land company. The .legal interest in the notes, as we have seen, was'in the persons named as payees; and even if it should be granted, which does not appear, that the consideration moved from the company, the action was properly brought in the names of those to whom the promise was expressly made.

4. Another point made is, that the notes are usurious upon their face. *The answer to this point, is J found in the facts stated in the declaration, to wit, that the notes and the assumpsit of the defendant, were made at Apalachicola, in the .state of Florida. That the rate of interest was regulated by statute in that state, or that the common law prevails there, are mere matters of conjecture. Suspicion alone will not. invalidate a contract, and there is nothing else in this case..

The sixth and seventh points, as to the varianóe, and the erroneous assignment of the breach of the contract stated in the declaration,- depend upon the assumption, that the promise to pay the plaintiff is in the alternative. This has already been considered.

It is contended, under the 8th point, that the notes were payable to the plaintiffs in their official capacity; that the pleas which show them out of office,, and other trustees in their place, are a bar to the action. As the promise was made to the plaintiffs, as trustees of an unincorporated company, the action must be brought in their names, although other persons had been subsequently appointed. In Townsend v. Goewey (19 Wend. 427), the association was for the purpose of building an exchange in Albany; the defendant subscribed for stock, and the association was subsequently incorporated; after which, the action was brought in the names of the original trustees, agreed upon before the association was incorporated. The promise was to the trustees, or their successors; it was held, that the action must be brought in their names, and that their successors took the beneficial interest, as assignees, without a formal assignment.

The next question arises upon the plea, or rather the replication to the defendant’s plea, of the statute of limitations. It appears, that the defendant’s intestate, Mitchell, when the note was made, and the cause of action accrued, was without this state, and continued out of the state, until his death. That the defendant, on the first of June 1844, was duly appointed administrator, and took upon himself the burden, &c. And *that the action was brought within six years after the *- 0 granting of administration. The replication is, I think, a perfect answer to the plea, according to Benjamin v. De Groot (1 Denio 156) and Douglass v. Forrest (4 Bing. 686). In the last case, the testator resided and died abroad; the action was on a Scotch judgment, obtained by proclamation against the testator, when he was in India; it was held, that his executors in England might be sued, within six years after taking out probate. And in the case from Denio, that where the statute did not begin to run in the lifetime of the testator, it could not commence running, until there was a personal representative, against whom a suit could be brought.

The replication does not, in terms, negative the fact, that administration was not granted prior to the time specified, to the defendant or some other person. But I ttiinlr this a defect of form rather than substance, and that it is waived by the rejoinder, which attempts to sustain the plea, upon the sole ground that the debt was not contracted, nor was the decedent ever within or amenable to the jurisdiction of the state. The judgment should be affirmed.

Judgment affirmed.

Foot, J., dissented. 
      
       See Considerant v. Brisbane, 22 N. Y. 389.
     