BRAZELTON et al. vs. McMURRAY

BRAZELTON et al. vs. McMURRAY. [action on teomissobt note.] 3. Promissory note; what constitutes, although accepted hy a third person.— An instrument which is in the form of a note, but which, in addition, is addressed' to a third person, who accepts it, is a promissory note, and may be so declared on. Appeal from Circuit Court of Perry. Tried before Hon. B. L. Whelan. This suit was upon an instrument of which the following is a copy: “ Marion, 1st January, 1862. “ $943 80. Twelve months after date, I promise to pay to the order of James McMurray, nine hundred and forty-three and 80:100 dollars, value received, payable at the office of E. A. Blunt, Marion, Perry county, Alabama, and charge to your obedient servant, A. J. Brazelton, •James Scott. “To W. M. Catlin, Marion, Alabama.” This was accepted by Catlin, by writing his name across the face of the note. The complaint contained two counts ; one1 upon a bill of exchange, and another upon a promissory note, substantially in the terms of the forms prescribed in the Bevised Code. The defendants were duly served with process, and on their failure to appear, judgment by default was rendered against them. They now assign for error that the instrument declared on was a bill of exchange, and that the complaint did not aver notice of non-payment. Moore & Lockett, for appellants. John E. Yary, contra. [MAJORITY — B. F. SAFFOLD, J.] B. F. SAFFOLD, J. In the second count of the complaint the appellants were declared against as the makers of a promissory note. Where an instrument is capable of being interpreted either as a bill of exchange, or as a promissory note, the person who receives it may, at his own option, treat it as a bill of exchange, or as a note against the maker. Therefore, an instrument which is in the form of a note, but which, in addition, is addressed to a third' person who accepts it, is a promissory note and may be so declared on. — Story on Prom. Notes, § 16; Chit, on Bills, ch. 2, § 2, pp. 28, 29, (8th ed.) The judgment is affirmed.