
    *Henry C. Weidler and Gabriel Carpenter, Survivors of Gabriel Carpenter, deceased, late Partners under the firm of Weidler, Carpenter & Co. v. George Kauffman.
    A memorandum of settlement among partners for the completion of a canal section, ascertaining the amount due to one partner at the date of such settlement, with a promise to pay the amount to him or order on final estimate of the section, is not a negotiable instrument.
    This is a writ of error, directed to the court of common pleas of Fairfield county.
    The record of the original action presents the following state of facts:
    The action was assumpsit, by defendant in error, against the plaintiffs in error.
    The declaration avers, that prior to November, 1838, the laws of Ohio authorized the construction of the Hocking Valley canal, and provided for the payment of the cost of construction, when the different sections thereof should be completed, and the final estimate made by the engineer.
    That prior to November, 1838, section No. 10 of said canal had been contracted to be constructed, and was in course of construction on the 9th day of the said month.
    That before that time Gabriel Carpenter, the deceased, had been a merchant, and prior to the 19th November, the firm of “ Weidler, Carpenter & Co.” had become indebted to said G. C., deceased, for goods, etc., advanced to and for said firm.
    That on November 19, 1838, the defendant, Weidler, for and on behalf of the firm, settled with G. C., deceased, respecting said indebtedness of the firm, on which settlement there was found due and owing from the firm to G. C., deceased, $1,748, and in consideration of said indebtedness, *the defendants and G. C., deceased, in the name and style of “Weidler, Carpenter & Co., by H. C. Weidler,” made their promissory note, and delivered the same to G. C., deceased, and thereby promised to pay said G.'c., now deceased, or order, $1,748, when the final estimate upon section 10 of the Socking Valley canal should-be made. And the said G* C., deceased, then and there indorsed said note to the plaintiff, whereof the defendants then and there had notice.
    
      That said section No. 10 was completed, and the final estimate thereon made on July 1, 1840.
    In consideration whereof the defendants, on July 1,1840, promised to pay the amount of said note to the plaintiff according to the tenor and effect thereof. Breach, non-payment, etc.
    Plea by Henry C. Weidler — non assumpsit
    
    1. Plea by Gabriel Carpenter: That the supposed promissory note, if any such there be, was made and given without his knowledge or consent, and without his knowledge and consent indorsed by G. C., deceased, to the plaintiff, for and on account of a private individual debt of him, the said G. C., deceased, before that time, and still due and owing from the said G. C., deceased, and for no other consideration whatever,
    2. Plea by same — non assumpsit.
    
    To the first plea of the defendant, G. Carpenter, the plaintiff filed a general demurrer.
    At a subsequent term the defendant, G. Carpenter, filed a third plea, “ that the written paper referred to in the plaintiff’s declaration, was given by said Weidler and the said G. Carpenter, deceased, without the knowledge or consent of the defendant, G. Carpenter, as a memorandum of a balance then supposed to be due by the said firm to the said G. C., deceased, and was assigned to the said plaintiff in payment of a pre-existing debt of the said G. C., deceased, and that at the time of the said assignment the plaintiff well knew the same was given as a memorandum of a balance, etc., as aforesaid, and for no other purpose; and at the time of the ^completion of said section 10, and the final estimate thereon, the said firm was not indebted to the said G. C., now deceased, in the amount stated in said note or written memorandum, nor in any other sum.”
    Said defendant at the same time .filed a fourth plea, “ that said written paper was given by the'said Weidler to said G. C., deceased,‘without the knowledge or consent of the defendant, G. C., as a memorandum of a debt then supposed to be duo by the said firm to the said G. C., deceased, on settlement of the accounts of the said firm relating to section ten — and that the same was assigned by G. C., deceased, as collateral security for a pre-existingdebt of him, the said G. C., deceased; that at the time of the assignment the plaintiff well knew that the same was given to G. C., deceased, as a memorandum of a supposed balance, etc., as aloresaid, and for no other purpose; and that at the time of the completion of and final estimate on said section ten, and upon the settlement of the partnership accounts, the said firm was not indebted to said G-. C., deceased, etc.”
    ' To the third and fourth pleas the plaintiff also put in general demurrers.
    The record shows that the cause was heard by the court below at the September term, 1845, on the demurrers of the plaintiff to the three special pleas of the defendant, Gr. Carpenter, and that the said demurrers were severally sustained.
    Also, that at the same term the case was submitted to the court below for trial on the general issue pleas, and judgment rendered in favor of the plaintiff for $2,297.07, damages and costs.
    Also, that on the trial a bill of exceptions was signed and sealed by the court, at the instance of the defendant, which bill of exceptions is, in substance, “that the defendant admitted, on the trial, that said section ten was under contract for construction on November 19, 1838; that the defendants and G-. C., deceased, by the name and firm of Weidler, Carpenter, etc., were the contractors, and that the contract *was completed July 1, 1840 ; whereupon the plaintiff produced an instrument in writing, as follows :
    “ Due G-. Carpenter, on settlement of canal operations on section ten, Hocking canal, $1,748, which we promise to pay him or order •on final estimate of said section.
    “ Weidler, Carpenter & Co.
    
      “Per PL. G. Weidler:
    
    
      “November 19, 1838.”
    The signature of Henry C. Weidler thereto, and the indorsement of G-. C., deceased, to the plaintiff thereon, being admitted by the defendants, the plaintiff offered said instrument in evidence as the note declared on, which was objected to by the defendant G-. O-., and also by the defendant Weidler; which objection was ■overruled by the court, and the paper admitted in evidence.
    To reverse this judgment the writ of error was sued out, and the errors assigned are:
    1. That the court erred in sustaining the demurrer to the first, third, and fourth pleas of the. defendant, G-. Carpenter.
    2. That the court erred in receiving in evidence the note specisfied in the bill of exceptions:
    3. That the court erred in rendering judgment for the plaintiff.
    
      Henry Stanbery and H. H. Hunter, for plaintiffs in error:
    The paper counted upon and offered in evidence was a mere memorandum, not negotiable, and therefore passed no title to the plaintiff below, by indorsement. The'pavment depended upon a future contingency, and though the event is now reduced to a certainty, that circumstance can not affect the character of the instrument. Its character was stamped upon it at the time of its execution ; if void then, no subsequent event can give it vitality. Carlos v. Fancourt, 5 Term, 482; Kingston v. Long, 4 Doug. 9; Chit. on Bills, 134, n. y; 137, n. e; Ib. n. z.
    
    *The English cases referred to by counsel for the defendant are not analogous. For instance, a note payable on the death, of A. B. is good, because in the course of nature, he must die. So, too, it has been held that paying off of government ships is amorally certain event, and a note made payable on such an event would be good; but these decisions have been questioned. See note z, Chitty on Bills, 137, before cited. But what certainty was there that the work on this section would ever be done, on which a final estimate could be made?
    But again, this paper is invalid as a note, because made under such circumstances that the sum to be paid is totally uncertain. Smith v. Lusher, 5 Cow. 706, 708.
    John T. Brazee, for defendant in error:
    The event, upon the happening of which this was to be paid, was sufficiently certain. The legislature of Ohio (see Local L. for 1836, p. 311) made the Hocking Valley canal a public work, and the payment of estimates for work done on the canal as certain as any of the operations or promises of the government.
    An event depending ujoon an act which a state is bound to perform, and which, if she redeems her promises, she will perform, is sufficiently certain to impart negotiability to the instrument of writing made payable on the happening of such an event. Andrews v. Franklin, 1 Strange, 24; Evans v. Underwood, 1 Wilson, 262; 1 Selw. N. P. 282.
    A note payable on the death of a certain person, is a good note; the event being certain to happen, though the time is uncertain. Collehan v. Cook, Willes, 393, 398.
    The objection has been made, and may be again, that the instrument is invalid, because one of the makers and the payee are the same person. The point is not well taken. 1 Caine, 191; Harrison v. Jackson, 7 Term, 99; Smith v. Lusher, 5 Cow. 688.
   *Read, J.

The present action is founded upon the following writing:

“ Due G-. Carpenter, on settlement of canal operations on section No. 10, Hocking Canal, $1,748, which we promise to pay him or order on final estimate of said section.

(Signed,) “ Weidler, Carpenter & Co.

H. C. Weidler.

“November 19,1838.”

Kauffman has sued upon this writing in his own name as a negotiable note.

To constitute a negotiable note, it must be payable at all events. The event must be one which must happen in due course of the laws of nature. The only exception to be found in the books is in England — where it has been held that a note payable, in the event of the government paying off the public ships, is negotiable. The paying off the government ships is there regarded as an event which must happen. The prosperity, glory, and pride of England consist in her navy; and they arc not willing to tolerate the idea that government will not discharge its duty in this respect. But this exception has justly been doubted as law. But admitting it to be a correct principle — that an event depending upon the government performing its duty is sufficiently certain — ■ it will not help this case.

The event upon which this note was made payable, was the happening of final estimate on the completion of section No. 10. This is an event which must transpire neither by the laws of nature, nor by the performance of its duty by the government; but upon the contingency of Weidler & Co. completing the job of said section No. 10. This paper, then, is not a negotiable note, but just what it purports to be — a memorandum of settlement between two members of a firm, finding an amount due one at that time, not binding upon the third, unless he assented, to be paid and adjusted according to the state of the account on final settlement of the partnership concerns, and completion of section No. 10, for which the ^partnership was formed, and on final estimate of what was due from the state.

This view disposes of the whole case.

The court, therefore, erred in sustaining the demurrer to the special pleas. The declaration showing no cause of action, and a ■demurrer looking back to the first error, judgment should have been given for the defendant. Judgment reversed, and judgment for defendants.  