
    James C. Baird v. C. H. Underwood.
    Promissory note —pay (Me on a contingency, not negotiable. An instrument in writing for the payment of money six months after date, on condition its amount “is not provided for as agreed by C, D,” not being payable absolutely and unconditionally, is not a negotiable promissory note, and suit cannot be maintained on it in the name of an assignee.
    Appeal from the Circuit Court of Kane county; the Hon. Silvanus Wilcox, Judge, presiding.
    Mr. T. E. Ryan, for the appellant.
    Messrs. Brown & Southworth, for the appellee.
   Mr. Justice Sheldon

delivered the opinion pf the Court:

This was an action brought by Baird, the appellant, as assignee of the following instrument of writing, against Underwood, appellee, the maker thereof.

“ St. Charles, Nov. 22d, 1871.
Six months after date I promise to pay to the order of Lewis Klink, the sum of one hundred and twenty dollars, for value received, on condition said amount is not provided for as agreed by J. Updike.
C. H. Underwood.”

Judgment was rendered in the court below in favor of the defendant, from which the plaintiff appealed.

The only question presented is, whether this instrument sued on is a negotiable promissory note, so that the assignee, the appellant, can sue and recover upon it in his own name.

It enters into the definition of a promissory note, that the money must be payable at all events, not depending on any contingency, either with regard to event, or the fund out of which payment is to be made, or the parties by or to whom payment is to be made. Chitty on Bills, 155; Kelley v. Hemmingway, 13 Ill. 604; Smalley v. Edey, 15 id. 324.

This instrument is payable six months after date, on condition its amount is not provided for as agreed by J. Updike.” In case J. Updike should provide for the amount of the instrument then it would not be payable by the maker. It is payable conditionally only, and not absolutely and at all events, and therefore is not a promissory note.

The authorities cited by appellee’s counsel to the point, that an instrument is a negotiable promissory note where it is payable absolutely at a time certain, but upon the happening of some contingency will be payable before, do not conflict herewith. In such case, the time of payment must certainly arrive, and is not contingent, in the proper sense; for that means a time which may or may not arrive. This instrument is not absolutely payable by the maker at all; it is only contingently payable by him, and it was not certain at the time of the giving of the note, that it ever would be payable by the maker.

The instrument not-being negotiable, the appellant has not the legal title to it, and cannot. maintain the suit in his own name.

The judgment will be affirmed.

Judgment affirmed.  