Remedial Plan, Inc. v. Ott
| Decision Date | 11 May 1923 |
| Citation | 250 S.W. 825,199 Ky. 161 |
| Parties | REMEDIAL PLAN, INC., v. OTT. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.
Action by the Remedial Plan, Incorporated, against Alfred W. Ott. Judgment for defendant, and plaintiff appeals. Affirmed.
Wm. F Clarke, of Louisville, for appellant.
Bruce Bullitt & Gordon and Leo T. Wolford, all of Louisville, for appellee.
The negotiability of the instrument sued on by appellant Remedial Plan, Incorporated, is the only question to be determined by this appeal. It reads:
"Labor Saving Appliance Company, Incorporated. Office and Showroom, 309 Guthrie Street, Louisville, Ky. Both Phones.
Date Sept. 21, 1920.
Please deliver to me the following subject to the conditions specified below:
| 1 Model B Frigidaire White .. | $630 00 |
| Frt. and Haul ................. | 20 00 |
| Installation .................. | 30 00 |
| ------- | |
| $680 00 |
Louisville, Ky. Sept. 21, 1920.
Within ten ______ after date in ten equal payments as herein provided, for value received, the undersigned jointly and severally promises to pay to the Labor Saving Appliance Company, or order, the sum of five hundred dollars ($500), negotiable and payable at the office of said company in the city of Louisville, Ky. The makers and indorsers agree to pay the above obligation in 10 installments of fifty-four dollars ($54) each, beginning on the 21st day of October after the date hereon and continuing such payments until this entire indebtedness shall have been paid in full, and should default be made in any one or more of the said payments, the undersigned agrees to return above material to the company, or its assigns on demand. The undersigned further agree to take good care of the above-named articles and be responsible for its loss by theft, fire, or other casualty, and not to move it from 4554 South Third street, Louisville, unless undersigned first obtains written consent from said company or its assigns. It is understood and agreed that no other agreement or guaranty, verbal or written, express or implied, shall limit or qualify the terms of this contract.
Salesman, J. Harry Ives.
The refrigerator outfit mentioned in the foregoing instrument was not delivered or installed.
Instead the vendors went into bankruptcy very soon after receiving the writing. Before this happened, however, the paper was indorsed before due by Labor Saving Appliance Company, payee, and transferred as collateral to appellant, a concern organized for, and engaged in, negotiating and dealing in commercial instruments. This indorsement, according to the averments of the petition, was placed on it about September 25, 1920, only 4 days after the execution of the paper.
In this paper are three obligations: (a) an order for merchandise; (b) a negotiable promissory note; and (c) a chattel mortgage or hypothecation.
Appellant insists that, inasmuch as the instrument contains a complete promissory note, error was committed by the trial court in dismissing its petition, and for this error it says the judgment should be reversed.
Appellee asserts that the instrument which is the basis of this action is not, according to its face, payable on demand or at a fixed or determinable future time, and is not a negotiable instrument when measured by subsections 1 and 7 of section 3720b, Kentucky Statutes; that appellant was not a holder in due course because on its face the instrument was not complete and regular (Section 3720b, subsections 52 and 57, Kentucky Statutes); the instrument was never indorsed nor delivered to appellant; and further that the instrument is not negotiable because it contains a condition.
The first subsection of section 3720b, Kentucky Statutes reads:
"An instrument to be negotiable must conform to the following requirements:
(1) It must be in writing and signed by the maker or drawer.
(2) Must contain an unconditional promise or order to pay a sum certain in money.
(3) Must be payable on demand or at a fixed or determinable future time.
(4) Must be payable to the order of a specified person or to bearer."
Measured by the statute, we think the instrument...
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McLean v. Paddock
...151 N.W. 825; United Ry. & Logging Supply Co. v. Siberian Commercial Co., 117 Wash. 347, 201 P. 21, 19 A.L.R. 506; and Remedial Plan, Inc. v. Ott, 9 Ky. 161,250 S.W. 825, in support of their position. Each of these cases, however, involves a note containing an omission such as 'payable four......
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... ... Steeley, ... Tex.Civ.App., 10 S.W.2d 1038; Arrington v ... Mercantile Protective Bureau, Inc., Tex.Com.App., 24 ... S.W.2d 383, affirming, Tex.Civ.App., 15 S.W.2d 663; P.J ... Williams ... arose and an agreement to return the goods purchased on ... default is negotiable. Remedial Plan v. Ott, 199 Ky ... 161, [142 Fla. 559] 250 S.W. 825. A notation on a trade ... acceptance ... ...
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