92 CASES IN THE SUPREME COURT Brittin vs. Mitchell. BRITTIN VSk MITCRELL. A bond, executed to A. B., administrator, or C. D., administratrix, of E. F., is a good bond, and negotiable, so that, if assigned by both A. B. and C. D., suit may be brought on it by the assignee. The word or must be taken to mean and, in such a case. DEBT, upon a bond executed by Britlin and others, to Samuel Gray, administrator, or Lucy Gray, administratrix, of Mauhew Gray, deceased; determined in the Hempstead Circuit Court, in October, A. D. 1841, before the Hon. WILLIAM CONWAY B., one of the Circuit Judges. The defendant, Brittin, demurred to the declaration; and his demurrer being overruled, judgment went against him, and he sued his writ of error. Pike, for the plaintiff. A contingency or uncertainty, by or to whom a bill or note is payable, is fatal to its validity. Ch. on Bills, 159, a. Every contract must show in whose favor it is to be performed, or it will be void for uncertainty in an essential particular. If it he, really,
OF THE STATE . OF ARKANSAS. 9:3 Brittiri us. Mitchell. Uncertain by or to , whom payment is to be made, the instrument cannot operate as a bill or note. Thus, a note to be paid " by A. or else B.," is bad. So a note whereby the maker promises to pay to A. B., or to plaintiff's, or to his or their order. Blankentragen vs. Blundell, 2 B. 4 . A. 417: 1 Leigh, N. P. 367. Walrad vs. Petrie, 4 Wend. 575; The word or can never be construed to mean an4 except where it is clearly necessary to give effect to some clause in a will, or some legislative provision. In such cases, it has been forced out of its proper meaning, to effect these purposes, but never to change a contract at pledsure. Douglass vs. Eyre, Gilpin; 147. Trimble, contra. By the law merchant, a contingency, as to person, destroyed the character of the instrument as a bill or mite, and it was no longer assignable, or a negotiable instrument. Chitty on Bills, 159. It is net pretended that this instrument is a bill or note, but it is a bond, or a written- agreement, under seal; and the payees could have maintained an action of debt on it as a bond, agreement, or contract, to:pay a liquidated Sum. 4 Wend. 575, 6, 7. Sup'pose a. note, payable to A. or B., under the statute 3 and 4 Ann, was not assignable, (techniCally), as a note, so that the assignee conld 'maintain an action in his name; yet, iffor value received, a suit .COuld be inaintained on it, as a contract, by the obligee. And the reasen is,- that such a "note Was not assignable, under the statute above; (Or that . statute was made to give to promissory notes the character of cOmmereiel_paPer: that is, " shall have the same effett as inland bills efeichange." , Chitty on Bills, 549,. note. And the statute declares, that "theendorsee, Or assignee " shall and may maintain _his, her, or-their. action . ; in like manner as in cases of inland'bills of 'exchange.r The connt describing the , bond . was good, .and the plaintiff is en.: titled to recover. 4 , W ' end. , 575. Thal instrunient . of .Writing, as , described in the declaration, is a writing Obligatory, and, therefore, iMports &consideration. _The obli-gees COUld:recever on it; in debt, as a bond or contract for the pay.:. ment of a - Sum certain:, 4 Wend. 575, 6, 7. And, by our statute,
94 CASES IN T HE ' SUPRENIE COTTRT the assignee may sue for the saMe, in his own name, as assignee thereof, in the same manner that the original obligee or payee might or could do. Rev. St. p. 107, title dIsssignrnent, sec. 2. The firit se'e-tion makes " all bonds, bills, notes, agreements, and contracts, in writing, for the payment of money or property, or for both money and property, assignable. Sec. I. Anote pay able , to A. or B., is not, technically, a negotiable instrument, under the statute of 3 and 4 Ann; but this does not affect the question. In this ease, there is a bond for the payment of a sum certain, and for value,received, on which the payees might recover; and, by our statute, above recited, the as-signees may sue in the same manner as the original obligee or payee might or could do. By the Court, DICKINSON, J . That the Court properly overruled the demurrer, and gave judgment for the plaintiff below, we have no doubt. There is, certainly, no variance; and we do not think the objection of the bond being payable to Samuel or Lucy Gray, tenable. The party, unquestionably, owed the money to the estate of Matthew Gray, deceased; anil he executed the bond to the administrator and the ad-ministratrix; and because the writing describes it as payable to either one or the other, that cannot vitiate it. The word "or," used in the instrument, must be taken to mean "and." Under our statute, " all bondi, bills, notes, agreements, and contracts, in writing, for the payment of money or property," are assignable. This is, certaliily,. one of that description, and therefore assignable. Judgment affirmed. 4/94. Expind. in Pirani v. Bra-den. 5/81-7-8.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.