GAY V. ROOKE.

[151 MASSACHUSETTS, 115.]

PROMISSORY NOTE MUST CONTAIN ON ITS FACE AN EXPRESS PROMISE to pay money. A mere promise implied by law, founded on an acknowledgment of indebtedness, is not sufficient.

PROMISSORY NOTE, WHAT IS NOT.-"IO U, E. A. Gay, the sum of seventeen dolls. for value received," though signed by the writer, is not promissory note, but a mere acknowledgment of indebtedness.

100

INTEREST. In general, where there is a loan without any stipulation to pay interest, and where one owes money to another, having been guilty of no wrong in obtaining and no default in retaining it, interest is not chargeable. Therefore interest cannot be collected on an I O U, where there has been no demand for its payment.

CONTRACT on a writing which the plaintiff declared on as a promissory note, and which was in words and figures as follows:

"MARLBORO', Sept. 23, 1881. "IO U, E. A. Gay, the sum of seventeen dolls. 100, for value received. JOHN R. ROOKE." The only subject of contention was, whether plaintiff was entitled to interest from the date of the instrument or from the service of the writ. Upon this subject, the judge ruled against the plaintiff, and the defendant excepted.

H. S. Fay, for the plaintiff.

I. B. Forbes and C. S. Forbes, for the defendant.

DEVENS, J. In order to constitute a good promissory note, there should be an express promise on the face of the instrument to pay the money. A mere promise implied by law, founded on an acknowledged indebtedness, will not be sufficient: Story on Promissory Notes, sec. 14; Brown v. Gilman, 13 Mass. 158. While such promise need not be expressed in any particular form of words, the language used must be such that the written undertaking to pay may fairly be deduced therefrom: Commonwealth Ins. Co. v. Whitney, 1 Met. 21. In this view, the instrument sued on cannot be considered a promissory It is an acknowledgment of a debt only, and although from such an acknowledgment a promise to pay may be legally implied, it is an implication from the existence of the debt and not from any promissory language. Something more than this is necessary to establish a written promise to pay money. It was therefore held in Gray v. Bowden, 23 Pick 282, that a memorandum on the back of a promissory note, in these words, "I acknowledge the within note to be just and

due," signed by the maker and attested by a witness, was not a promissory note signed in the presence of an attesting witness within the meaning of the statute of limitations. In England, an IO U, there being no promise to pay embraced therein, is treated as a due-bill only. The cases, which arose principally under the stamp act, are very numerous, and they have held that such a paper did not require a stamp, as it was only evidence of a debt: 1 Daniel on Negotiable Instruments, 3d ed., sec. 36; 1 Randolph on Commercial Paper, sec. 88; Fesenmayer v. Adcock, 16 Mees. & W. 449; Melanotte v. Teasdale, 13 Mees. & W. 216; Smith v. Smith, 1 Fost. & F. 539; Gould v. Coombs, 1 Com. B. 543; Fisher v. Leslie, 1 Esp. 425; Israel v. Israel, 1 Camp. 499; Childers v. Boulnois, Dowl. & R. 8; Beeching v. Westbrook, 8 Mees. & W. 411.

While in a few states it has been held otherwise, the law as generally understood in this country is, that in the abscence of any statute, a mere acknowledgment of a debt is not a promissory note, and such is, we think, the law of this commonwealth: Gray v. Bowden, 23 Pick. 282; Commonwealth Ins. Co. v. Whitney, 1 Met. 21; Daggett v. Daggett, 124 Mass. 149; Almy v. Winslow, 126 Mass. 342; Carson v. Lucas, 13 B. Mon. 213; Garland v. Scott, 15 La. Ann. 143; Currier v. Lockwood, 40 Conn. 349; 16 Am. Rep. 40; Brenzer v. Wightman, 7 Watts & S. 264; Biskup v. Oberle, 6 Mo. App. 583. Some states have by statute extended the law of bills and promissory notes to all instruments in writing whereby any person acknowledges any sum of money to be due to any other person: 1 Randolph on Commercial Paper, sec. 88; Ill. Rev. Stats. 1884, c. 98, sec. 3; Col. Gen. Stats. 1883, c. 9, sec. 3; Ind. Rev. Stats. 1881, sec. 5501; Iowa Code, 1873, sec. 2085; Miss. Rev. Code 1880, secs. 1123, 1124.

We have no occasion to comment upon those instruments in which words have been used or superadded from which an intention to accompany the acknowledgment with a promise to pay has been gathered, or where the form of the instrument fairly led to that conclusion: Daggett v. Daggett, 124 Mass. 149; Almy v. Winslow, 126 Mass. 342. No such words exist in the instrument sued, nor is it in form anything but an acknowledgment. The words "for value received" recite, indeed, the consideration, but they add nothing which can be interpreted as a promise to pay. It is therefore unnecessary to consider whether, if the paper were a promissory note, interest should be calculated from its date. Upon this point

we express no opinion. If it is to be treated as an acknowledgment of debt only, as we think it must be, the plaintiff is not entitled to interest except from the date of the writ. Even if it was the duty of the defendant to have paid the debt on demand, yet if no demand was made, if no time was stipulated for its payment, if there was no contract or usage requir ing the payment of interest, and if the defendant was not a wrong-doer in acquiring or detaining the money, interest should be computed only from the demand made by the service of the writ: Dodge v. Perkins, 9 Pick. 368; Hunt v. Nevers, 15 Pick. 500; 26 Am. Dec. 616. "In general," says Chief Justice Shaw, "when there is a loan without any stipulation to pay interest, and where one has the money of another, having been guilty of no wrong in obtaining it, and no default in retaining it, interest is not chargeable": Hubbard v. Charlestown B. R. R. Co., 11 Met. 124; Carlton v. Bragg, 15 East, 222; Shaw v. Picton, 4 Barn. & C. 715; Moses v. Macpherlan, 2 Burr. 1005; Walker v. Constable, 1 Bos. & P. 306.

Exceptions overruled.

PROMISSORY NOTE, WHAT CONSTITUTES: See Kraft v. Thomas, 123 Ind. 513; 18 Am. St. Rep. 345; note to Chandler v. Carey, 8 Am. St. Rep. 815. "$1,000. GRASS VALLEY, July 8, 1882. "Three years from date, I promise to pay Daniel Strickland, for value received, in United States gold coin, at the rate of ten per cent per annual.

"DANIEL P. HOLBROOKE. "ELLEN E. HOLBROOKE,"

- is a promissory note: Strickland v. Holbrooke, 75 Cal. 268.

MILFORD, April 8, 1887. Cunningham and Madden, let W. Marshall have one bay horse, eight years old, known as the Cunningham horse, for $150. Fifty dollars by the 15th of April, 1887, and one hundred dollars by the first of August; that said Cunningham and Madden should hold the horse until paid for.

"WM. H. MARSHALL."

-is a conditional note, valid only between the original parties, unless recorded like a chattel mortgage: Cunningham v. Trevitt, 82 Me. 145. A promissory note made by an Indian living upon an Indian reservation is an enforceable obligation, where it conforms to the manners and customs of the Indian tribe: Ke-tuc-e-mun-quah v. McClure, 122 Ind. 541. A promissory note may be valid with the payee's name left blank; for the blank may be filled by any bona fide holder with his own name: Thompson v. Rathbun, 18 Or. 202. A treasury warrant is in legal effect but a promise to pay: State v. Wilson, 71 Tex. 291. A due-bill is a written obligation for the payment of money: White v. Curd, 86 Ky. 191; Rhodes v. Pray, 36 Minn. 392.

PROMISSORY NOTE, WHAT DOES NOT CONSTITUTE: See Chandler v. Carey, 64 Mich. 237; 8 Am. St. Rep. 814, and note; Furgerson v. Staples, 82 Me. 159; 17 Am. St. Rep. 470, and note; Burgess v. Fairbanks, 83 Cal. 215; 17 Am. St. Rep. 230, and note; note to Jennings v. First Nat. Bank 16 Av.

St. Rep. 214, 215. An agreement to pay a certain sum of money on a cer. tain day, upon condition that the sale of the property for a part of the purchase price of which it was given shall cause the debt at once to mature, is not a negotiable promissory note: First Nat. Bank v. Carson, 60 Mich. 432. INTEREST-DEMAND. - Interest dependent on demand: Note to Selleck v. French, 6 Am. Dec. 194, 195.

LEONARD V. LEONARD.

[151 MASSACHUSETTS, 151.]

DIVORCE BECAUSE OF THE IMPRISONMENT OF DEFENDANT in a state prison, or in a jail or house of correction, will not be granted when such im. prisonment is in another state. The statute making imprisonment a cause for divorce means imprisonment in this state for some offense known to the laws thereof.

A. P. Worthen, for the libelant.

No counsel appeared for the libelee.

C. ALLEN, J. The libelant seeks a divorce from her husband on the ground that he has been sentenced to imprisonment at hard labor in the state prison at Waupun, Wisconsin, for a term of seven years and six months; and the question presented to us is, whether such a sentence, passed in another state, is a good cause of divorce here. The Public Statutes, chapter 146, section 2, provide that a divorce may be decreed "when either party has been sentenced to confinement at hard labor for life, or for five years or more, in the state prison, or in a jail or house of correction." The first statute in this commonwealth making a sentence to imprisonment a cause of divorce was the Revised Statutes, chapter 76, section 5, where the language is substantially the same as that quoted above, except that the term required is seven years or more. Desertion was not made a cause of divorce till afterwards, by the statute of 1838, chapter 126, and it is therefore apparent that the sentence to imprisonment was not deemed merely to be substantially equivalent to a desertion. It imported an offense the nature of which was known to the legislature. Imprisonment elsewhere might be for a cause punishable here for a less term, or possibly not punishable here at all. The term "the state prison," when used without further description, in the Revised Statutes as well as in the more recent legislation, means the state prison of this commonwealth: Beard v. Boston, 151 Mass. 96. No instance to the contrary has been cited to us, and we do not now recall any. If a state prison elsewhere was

intended, it would be natural to say so in distinct language, as in the Revised Statutes, chapter 144, section 34. A sentence to imprisonment elsewhere is not included as a cause of divorce, within the meaning of the Public Statutes, chapter 146, section 2: Martin v. Martin, 47 N. H. 52, 53.

Libel dismissed.

DIVORCE.

CONVICTION OF A FELONY, ANd ImprisonmenT IN THE STATE PENITENTIARY as a ground for divorce, see note to Hamaker v. Hamaker, 65 Am. Dec. 708-725.

CIRIACK V. MERCHANTS' WOOLEN COMPANY.

[151 MASSACHUSETTS, 152.]

MASTER AND SERVANT. - AN EMPLOYER IS UNDER NO OBLIGATION TO WARN an employee of danger which is obvious, nor to instruct him in matters which he may fairly be supposed to thoroughly understand. Nor is it the duty of the master to admonish his servant to be careful, when the servant well knows his danger and the importance of using care to avoid it. It is the duty of the servant to use care proportionate to the dangers of his situation as he understands it; and if he fails to do so, the fault is his, and not his master's.

MASTER AND SERVANT. IF THE WORK OF A SERVANT EXPOSES HIM TO DANGER of which he is ignorant, and which, from his youth and inex. perience, he is incapable of comprehending without assistance, it is the duty of the master, if he knows or ought to know of it, to give him such warning and instruction as is necessary for his safety. To determine a master's duty, the inquiry must be, What instruction does the servant appear to need?

MASTER AND SERVANT. IF A BOY TWELVE YEARS OF AGE is employed, and is of less than the average intelligence of boys of his age, and the defendant knew or ought to have known this, and he is put to work in a place dimly lighted, in the same room with machinery with rapidly revolving gearing, and is told to go between the machines and to get a tool, and to hurry, and some part of his clothing is caught in the gearing, and he is drawn in and injured, there is sufficient evidence of negligence to warrant the submission of the case to the jury, if the injured boy had not been working upon or near the dangerous machinery, and was sent for the tool, without being given any warning or instruction concerning the danger attendant upon his getting into a position which it was necessary for him to assume in getting the tool.

ACTION of tort for personal injuries. The same case was before this court, and was reported in 146 Mass. 182; 4 Am. St. Rep. 307. Plaintiff was injured by being caught in the gearing of certain machinery, at a point three and a half feet from the floor. He and other boys were in the finishing-room, and his duty was to take cloth from an apron on the back of