
    *G. Ring and James Rice v. Samuel Foster.
    
      A writing in these words, “Three months after date we promise to pay Samuel Foster, or order, one hundred and forty-three dollars and twenty-two cents, provided the said Samuel Foster delivers the crop of tobacco raised by him and Trockmiller, then said Foster is to have one-fourth of the sum in hand, and, in addition, three' dollars and fifty cents per hundred for that part yet to be delivered, payable one-fourth in hand, and the balance in one hundred 'and twenty days, April 28, 1827,” is a promissory note within'the statute, dispensing with proof in certain cases. In an action upon such a writing, executed by four, and process served on two only, it is not necessary to prove the execution by the other two.
    This was a writ of error adjourned here for decision from the county of Fairfield. The original action was founded upon a writing in the following words:
    “Three months after date we promise to pay Samuel Foster one hundred and forty-three dollars and twenty-two cents, provided said Foster delivers the crop of tobacco raised by him and Trockmiller; then said Foster is to have one-fourth of the above in hand, and in addition thereunto three dollars and fifty cents for the part undelivered, payable one-fourth in hand, the balance in one hundred and twenty days.
    “ Thos. Cushing,
    Ring & Rice,
    J. H. Harris, by Th. H. Gushing."
    
    The original writ was issued against T. Cushing, Ring & Rice, and J. H. Harris, but was served on Ring & Rice only.
    
      The declaration contains three counts. The first was as upon a note in writing for the payment of one hundred and forty-three dollars and twenty-two cents, in the usual form, but reciting the writing in all its terms. The second count recited the same written contract as the first, and proceeded to aver the delivery of the crop of tobacco raised by the plaintiff and Trockmiller, amounting to five thousand pounds, and demanded, besides the one hundred and forty-three dollars and twenty-two cents, three dollars and fifty cents per hundred for the five thousand pounds of tobacco. The third was a general count for tobacco and other articles sold and delivered.
    The general issue was pleaded, but no affidavit annexed denying the execution of the writing. At the trial the defendants objected to the admission of the writing declared on in evidence without proof of its execution, but the court overruled the objection. A bill of exceptions was taken, and the *verdict [280 and judgment being for the plaintiff, this writ of error was brought.
    H. H. Hunter, for the plaintiff in error,
    contended that the writing was not legally admissible in evidence without proof. He argued that it was not a note within the statute, and that if it were the statute did not apply to the makers not served with process nor otherwise before the court; that the plaintiff, to recover, must prove the execution of the writing by all the subscribers to it, as he had named them all in his process; that if the plea of .Ring & Rice without affidavit was an admission as to them, it was no admission as to Cushing and Harris, and proof of their execution must also be made. He cited Palmer v. Hogson, 1 Esp. N. P. 135; Chitty on Bills, 381.
    Irvin and Stanbery,
    on the other side, cited Chitty on Bills, 323; Duncan v. Campbell, 1 Ohio, 115.
   Judge Lane

delivered the opinion of the court:

Two points are taken by the plaintiff in error. This writing is not a promissory note; if it is, its production is no proof of its execution against Cushing and Hunter, and without such proof the defendants can not be charged. The phraseology of the statute seems to preclude the latter of these objections. It provides that a “plea of non assumpsit offered by a person to be charged as maker of a note, it shall not be necessary for the plaintiff to prove the making of the note on which, such suit is brought, unless the party offering the plea shall make affidavit of its truth.” This statute is essentially remedial, designed where a deed or note is set forth in the declaration to impose upon the plaintiff the necessity of proving it in those cases only in which the execution of the instrument counted upon shall be denied upon oath, and no sound rule of interpretation justifies a restrictive construction. It is “ the note on which the suit is brought,” which shall be deemed duly executed, in the absence of the affidavit. If, then, the writing declared upon be a promissory note, it was properly offered to the jury.

And we do not assent to the limited meaning which the plaintiff’s counsel would attach to the phrase, “ promissory note.” It 281] need not be negotiable. Any absolute promise to *pay a certain sum of money at a specified time, if it constitute the entire contract, may be taken to be a promissory note. Was this engagement of that description ?

It was an absolute promise to pay one hundred and forty-three dollars and twenty-two cents in three months; but if a contingency happened, which depended on the promise, one-fourth the amount became payable sooner. In addition to this the maker promised to pay three dollars and fifty cents for tobacco, if delivered. The first part is a promissory note merely; does the additional terms change this character?

A majority of the court believe not. It will be observed that it is not per se a contract, binding Foster to the delivery of the tobacco; it was a promise to pay, if delivered. The other contract was complete without it; the additional terms acquired effect at the option of Foster; he held their absolute promise to pay a specified sum in three months, which constituted the entire contract, if he took no steps to extend the liability of his debtors beyond. His first count is framed upon this promise; either writing is in every sense a promissory note, and as such rendered evidence to support it, by the statute, without proof of its execution.

It is further urged that the first and second counts are bad, from omitting to set forth a consideration. If the writing be a promissory note, none is necessary to be averred under our decisions. 1 Ohio, 118. If the consideration to pay for the tobacco be the delivery, the delivery is shown in the second count. The alleged misjoinder of parties does not exist in the pleading.

Judgment is affirmed.

Judge Wright

dissented:

I understand a promissory note to be a written promise by one to another, to pay a certain sum at all events, in a specified time.

The writing under consideration is in these words:

“ Three months after date we promise to pay Samuel Foster, or order, one hundred and forty-three dolllars and twenty-two cents; provided Samuel Foster delivers the crop of tobacco raised by him and Trockmiller, then said Foster is to have one-fourth of the above in hand, and, in addition, three dollars and fifty cents per hundred for that part yet to be ^delivered, payable one- [282 fourth in hand, and- the balance in one hundred and twenty days. April 28, 1827.
“Thomas H. Cushing,
Ring & Rice,
J. H. Harris, per.
T. H. Cushing

By this agreement, other things are embraced than the mere payment of a certain sum at a stipulated'time — the purchase of an entire crop of tobacco, at a certain rate per hundred, is embraced within the legal import of the instrument; it looks to the purchase and delivery of this crop by a third party, Trockmiller, and the price to be jiaid. Upon the completion of this stipulation, depends what sums shall be paid down, or in ninety or one hundred and twenty days. If the crop is delivered, then one hundred and twenty-one dollars and sixty-one cents, and one-fourth of the crop at three dollars and fifty cents per hundred, is to be paid in hand, and one hundred and twenty-one dollars and sixty-one cents in ninety days, and three-quarters of the crop of tobacco in one hundred and twenty days. I am unable to see, how the first member of this article can be disconnected from the residue, so as to make it a promissory note. Indeed, the plaintiff declares upon the article as one for the tobacco in one count. Can the instrument change its character, at the will of the party holding it, and be on the first count a note, and on the second an article, as he may offer it? It must, in law, be either a note or an article — it can not be both.

I think it not a promissory note; and, therefore, not within the statute dispensing with proof of execution.  