
    Alexander A. McLeod, Plaintiff, v. James C. Hunter, Defendant.
    (Supreme Court, New York Trial Term,
    November, 1899.)
    1. Bills and notes — Consideration — Rescission.
    After a joint mining adventure, designed to develop the defendant’s mines, had proved unsatisfactory, he offered to return the plaintiff his advances and to this the latter assented. The defendant paid him a part of the advances in cash and gave him a note for the balance.
    Held that there was a rescission which abrogated the joint mining contract.
    That the consideration for the rescission was the cash and the note; and that the rescission itself offered a valid consideration for the note. j
    2. Same — When a note is payable on demand.
    A note in the form “ I promise to pay to the order of A. A. McLeod $2,000, at his office, N. Y. City ”, is payable on demand, and in this respect cannot be varied by parol evidence.
    3. Same — Omission of “ value received.”
    The omission from the said note of the words “ value received ” does not impair the note nor weaken the presumption that it was given for value.
    Action on a promissory note made by defendant.
    James Armstrong, for plaintiff.
    Hastings & Gleason, for defendant.
   McAdam, J.

The plaintiff advanced to the defendant $3,000, to be used in a joint venture exploring for iron ore on certain lands in Minnesota, supposed to contain rich mineral deposits. The result did not meet expectations, and, the plaintiff complaining to the defendant, the latter said: This thing is no good; we will have to call it off and I will give you back your money,” to which the plaintiff replied, all right.” The plaintiff then said he wanted some evidence of the debt, whereupon the defendant returned $1,000 of the money and for the balance of $2,000 gave his promissory note, the one in suit, thereby effectually rescinding the mining contract under which the deposit was made. Anson Cont. (Am. ed. by Huffcut), 333. Such rescission meant the abrogation and annulling of the mining contract and the restoration of the parties to the position they occupied before such contract was made. The consideration for the rescission was the $1,000 and the note in suit, and the consideration for the note was the rescission of the contract, the one validating the other, leaving the mining venture entirely in the hands of -the defendant to continue future operations as he pleased. If they proved successful the gains would belong exclusively to the defendant. If they failed the loss would be his. Under such circumstances the defense of want of consideration is without merit. The note, omitting .the date and signature, is in these words: “ I promise to pay to the order of A. A. McLeod $2,000, at his office, FT. T. City.” Such a note is by law payable on demand (Laws of 1897, chap. 612, § 26, subd. 2), and in this respect it cannot be varied by oral evidence. Sheldon v. Heaton, 88 Hun, 535, 539; Thompson v. Ketcham, 8 Johns. 191; Herrick v. Bennett, Id. 374; Gaylord v. Van Loan, 15 Wend. 308; Cornell v. Moulton, 3 Den. 12; Van Allen v. Allen, 1 Hilt. 524. The omission of the words “ for value received ” does not impair the note, affect its legal import or weaken the presumption that it was given for value. Kinsman v. Birdsall, 2 E. D. Smith, 395; 1 Dan. Keg. Inst. § 108. There being no substantial defense, judgment must be directed for the plaintiff.

Judgment for plaintiff.  