The points made on this record are to be determined by our statute, chap. 13, title, “ Negotiable Instruments,” (Scates’ Comp. 291). The third section of that chapter provides, that all promissory notes, bonds, due-bills, and other instruments in writing, made or to be made by any person or persons, body politic or corporate, whereby such person or persons promise or agree to pay any sum of money or articles of personal property, or any sum of money in personal property, "or acknowledge any sum of money or article of personal property to be due to any other person or persons, shall be taken to be due and payable; and the sum of money or article of personal property therein mentioned, shall, by virtue thereof, be due and payable to the person or persons to whom the said note, bond, bill or other instrument in writing is made.
The fourth section bestows upon such paper an assignable quality, and the fifth section authorizes the assignee to sue upon it, in his own name.
In the sense of the commercial law, the note, in the record, is not a promissory note, and a consideration, therefore, would have to be averred and proved, as it does not, on its face, import a consideration. The statute quoted has changed this law, and made such a writing negotiable. It has all the requisites of the statute. It is made by a person, who acknowledges a certain specific sum of money to be due to another person, which sum of money may be discharged in certain property at a certain price. The case of Bradley v. Morris, 3 Scam. 182, cited by appellant’s counsel, as governing this case, must be admitted to be, in most respects, precisely like this case. In that case, suit was brought on a note for $225, and an accepted order for $450 payable in lumber. The accepted order for $450, it was contended, was a bill of exchange, and ought to be governed by the rules applicable to such instruments. The court say, “ ít is true, it is in the form of a bill of exchange, and by statute is made transferable by indorsement or assignment; but here the analogy ends. The statute has not declared it to be a bill of exchange, and the law recognizes instruments of writing for the payment of money only as coming under this denomination. As this order, therefore, is not tor the payment of money, but for the delivery of lumber to the value of a specified sum, it cannot be regarded as a bill of exchange ; nor are the rules govern*342ing the rights and obligations of parties to snch instruments applicable to it.”
When this decision was pronounced, a statute, in all respects like the one we have cited, was in full force (E. L. 1833, page 482), and it seems strange such a decision should have been pronounced. The bill of exchange was for a specified sum of money, with the privilege to the acceptor to pay it in lumber. Borah v. Curry, 12 Ill. 66. It was a money demand, from which the acceptor could have discharged himself only by proving the delivery, or offer to deliver, the proper quantity of lumber, or by the payment of the money. It was not a bill for the delivery of lumber in any sense, nor like a covenant to deliver lumber, for a breach of which the party could recover damages. It was a privilege to the maker to discharge his acceptance in lumber, and on his failure so to do, the money could be demanded. The note in suit here, has a striking resemblance to this bill of exchange, it being a negotiable note, and indorsed by the payee. The indorser of the note stands in the same position as the drawer of the bill, and the maker of the note is under the same liabilities as the acceptor, and both are within the scope of the statute cited. The case of Bradley v. Morris cannot be the law, and cannot control this case.
The case of Kelley v. Hemmingway, 13 Ill. 604, is not, in any particular, such a case as this. In that case the note was decided not to be a promissory note and negotiable under the statute, for the reason that it was payable on a contingency which might never happen, and therefore the money was not certainly and at all events payable, a necessary ingredient of a promissory note, as well under our statute as by the commercial law.
We come now to the case of Lowe v. Bliss et al., 24 Ill. 169, the latest case on the point raised here. That decision was by a majority of the court, there being one dissenting.
We are free to say, on more mature reflection, that so much of the opinion in that case, as decides that the instrument there presented was not admissible under the common counts without proving a consideration, is not in accordance with the statute quoted, because the note on its face was for value received, which imports prima facie a consideration. The majority of the court had more particularly in view the strict commercial law applicable to such cases. This instrument was evidence under the statute without proving a consideration. Stacker v. Watson, 1 Scam. 209. The payee of this note before it was indorsed, it is in proof, demanded the lumber of one of the makers of the note, which he refused to de*343liver, though he had lumber on hand at the time. On this refusal, the note became a money demand absolutely, and as such was assigned to the plaintiff. It is immaterial on whom the demand was made—it was on one of the makers of the note, and the refusal to pay the lumber, subjects either or both makers to its payment in money, and to the plaintiff in this suit, who is the undisputed assignee and owner of the note. The judgment is affirmed.
Judgment affirmed.