#### Corbitt, by Alvord, her next friend, vs. Stonemetz.

May 15.

A written promise to pay a certain sum *“*at such times and in such articles as C. (the payee) may need for her support,” is not a promissory note.

Such a promise is absolute as to the amount, and contingent or qualified only as to time aud manner of payment.

Proof that the payee, at the time of demanding payment, was about to give birth to an illegitimate child, of which one of the promissors was the putative father, shows that the contingency in respect to time had arrived.

A demand of payment according to the terms of the instrument, was necessary before bringiug action, unless the maker waived it.

A declaration by the maker, when requested to pay the amount in money, that he had determined not to pay it in any manner, was a waiver of a demand to pay in specific articles, and rendered him liable to an action for the amount in money.

APPEAL from the Circuit Court for *Dodge*County.

The case is stated in the opinion of the court.

Billinghurst, *Lewis &*Fribert, for appellant.

*Smith*& *Ordway,*for respondent:

The instrument sued on was payable in *articles*— not money — as needed.' If the payee needed any particular articles, the respondent should have been informed of it, and a reasonable demand made upon him for them, and the complaint should have alleged these facts. 5 Cow., 516 ; 20 Wend., 196 ; 2 Pars, on Con., 161-4; 2 Denio, 145; 4 Iowa, 590; 3 Watts & Serg., 295 ; 2 Penn., 69.

*By the*Court,

Cole, J.

This was an action upon an instrument in writing, of which the following is a true copy : “ Cambria, Nov. 8th, 1859. Eor value received, we jointly and severally promise to pay to Catharine Corbitt the sum of one hundred dollars, to be paid at such times and in such articles as the said Catharine may need for her support and maintenance. JOHN SMITH. L. Stonemetz.”

The plaintiff was non-suited in the circuit court, we suppose upon the ground that it did not appear from the evidence that *Catharine*was in need of any articles for her support, and that a proper demand had been made for such articles before the suit was brought.

It is very clear that the instrument was not a promissory note, because it was not payable absolutely in money, but at *171such times and. in snob articles as tbe payee might need for her support. A special demand upon tbe note should •fore have been made, unless the respondent, Stonemetz, by his conduct, rendered this unnecessary. It is conceded that the payee was enceinte, and that the note was -given by the putative father, *Smith,*and tbe other maker, for the purpose of meeting the expenses of her confinement. Her father testified that a few weeks after the note was given, and when his daughter was about being confined, he called upon *Stonemetz,*and asked him for money on the note.

We construe the note to be an absolute promise to pay one hundred dollars in such articles as *Catharine*might need. The only qualification there was about the promise, was in the manner in which payment was to be made. It was to be made in such articles as the payee might “ need for her support and maintenance.” It is said by the counsel for the respondent, that an action would never accrue upon the note, unless the payee was in need of something for her support. But -upon looking at the instrument, it will be seen that it contains an absolute promise to pay one hundred dollars; that amount to be paid when and in articles needed or called for. That the contingency in respect to time had arrived, is clear. The evidence shows that the girl was about being confined, and surely she would need assistance at that time if ever. We have been referred to the case of *Prindle vs. Caruthers,*15 N. Y. R., 425, in support of the position that the payee must not only call for the articles, but must actually need some for her support, before the note became payable. W e have examined that case, and find nothing in it in conflict with the views we have expressed upon this instrument. The greater portion of the discussion there is upon questions of pleading under the Code. So far as the case has any bearing upon this, it supports rather than conflicts with the construction placed upon this note.

The maker might unquestionably have insisted upon paying this note in specific articles instead of money, had it not been for the following reason. When the respondent, *Stone-metz,*was called upon by *Alvord*to pay the note, he replied, that he had intended to pay it, but had taken counsel and *172was 11015 ^0) an<i that should follow that advice. He did not admit his obligation or aver his willingness to note |n any Sp@cif[c articles, but he repudiated his liability to pay anything upon it. Under such circumstances, it is obvious that a demand of specific articles would have been entirely idle, because *Stonemetz*said he had been advised to pay nothing on the note, and should follow that advice. For certainly the law is not so unreasonable as to require a demand to be made when it appears from the defendant’s own conduct that such a demand would be nugatory and idle. Had *Stonemetz*indicated his readiness, or acknowledged his liability, to pay the note in such articles as *Catherine*might need, he might now insist, with some reason, upon the objection that the note was not by its terms payable in money. But having denied his obligation upon the note altogether, the case, we think, stands upon the same ground it would, had there been a demand for payment in specific articles made and refused. In the latter case, the law is well settled that the note would be payable in money. So, under the circumstances, we think the payee was relieved from the necessity of making and pressing a special demand, on account of the conduct of the respondent, *Stonemetz.*He did not refuse to pay because the demand was for money, but he placed his objection upon an entirely different ground, namely, that he was under no obligation to pay anything on the note. He cannot now change his position, and insist that there should have been a demand of specific articles.

For these reasons we think the judgment of non-suit must be reversed, and a new trial ordered.