The plaintiff declared as upon a promissory note, which did not specify any day of payment. The legal import of such a note is that it is payable on demand: and it is construed as if it contained these words on its face. (Story on Promissory Notes, Section 29.) But the note offered in evidence was payable “ so soon as circmstances will permit me.” This is not a promise to pay on demand. The legal effect of the note offered in evidence, therefore, was not the same as that declared on: and for this variance it should have been excluded. But it was not a promissory note, for the reason indicated in the bill of exceptions ; that is, its payment was made to depend on a contingency. It is essential, to constitute a written note for the payment of money, a valid promissory note, that the money be payable absolutely and at all events, and that payment be not made to depend on any condition, or contingency. (Id. Sec. 22 ; Story on Bills, Sec. 42, 48; Bayley on Bills, 5 Edit. 16 ; Chit, on Bills, 8 Edit. 154, 155.) Thus; a promise “ to pay when my circumstances will admit, without detriment to myself and family,” it has been held, is not a valid promissory note. (Story on Promissory Notes, Section 22, n. (6).) The present note contains an acknowledgment of indebtedness; but the mere acknowledgment of a debt, it has been held, without a promise to pay, is not a good promissory note. (Id. Sec. 14.) And it is perfectly well settled that such an acknowledgment, if accompanied with a promise to pay conditionally, is of no avail, unless the condition is complied with, or the event happens, upon which the promise depends. Thus, where one indebted, on being applied to for payment, admitted the debt and promised to pay “ when he was able,” it was held that this was a conditional promise, and that the plaintiff was bound to show the sufficient ability of the defendant. (Davis v. Smith, 4 Esp. R. 36 ; Mitchell v. Clay, 8 Tex. R. 445.)
So, a promise to pay “ whenever my circumstances enable me to do so,” was held to give a right of action, when the defendant became of ability to pay. (2 G. & Dav. R. 166.) *576But, to entitle the plaintiff to recover upon such a promise, the ability of the defendant must be shown.
Although where a subsisting indebtedness and consequent liability is shown, the law will imply a promise; yet where the plaintiff relies on an acknowledgment of the indebtedness accompanied with an express promise to pay conditionally, the law will not imply a different promise from that which is expressed : for where the promise is express, there is no room for implication. And if the plaintiff relies on the acknowledgment as the ground of his action, he must take it with the qualification. (7 Bing. R. 105.)
The note, given in evidence, was not a promissory note ; and to have entitled the plaintiff to a recovery upon it, as a promise to pay in consideration of the acknowledged indebtedness, it was incumbent on him to aver and prove that the circumstances of the defendant would permit, or enable him to pay it: in other words, that he had the ability to pay ; for that is what we understand by the expression, “ so soon as circumstances will permit me.”
If the plaintiff could have established a subsisting indebtedness, without resorting to this note, then, undoubtedly, by bringing his action upon such indebtedness, he might have recovered upon it, without reference to the defendant’s ability to pay. But having relied solely on the acknowledgment and promise contained in the note, he must have shown that the event had happened on which the promise was made to depend. Otherwise he was not entitled to recover.
It is objected, on behalf of the appellee, that there is no statement of facts; and that the assignment of errors does not authorize a revision of the ruling of the Court, upon the question of variance raised by the bill of exceptions.
The bill of exceptions, however, contains a statement of all the evidence; and that is sufficient to show the materiality of the ruling, upon the admissibility of evidence. And it seems to have been intended, by the first in order of the errors assigned, though it is not expressed with clearness and distinct*577ness, to present for revision the question of variance, reserved by the bill of exceptions, between the note sued on, and that admitted in evidence. The assignment of error would, perhaps, be deemed insufficient, if the objection were not of a character to bring in question the very right of action. But it is the settled practice of the Court, to notice objections, thus going to the merits and foundation of the action, even though not assigned as error. It is apparent from the bill of exceptions, that the plaintiff was permitted to recover on a different cause of action from that sued on, and one which was not made out in evidence. And it has been repeatedly determined that a recovery will not be permitted to stand, where the foundation of the action or recovery has manifestly failed, though the error be not assigned.
The mere misnomer of the instrument, by calling it a promissory note in the petition, would not have been material, if it had been made a part of the petition, or had been correctly described. For then the Court would have looked to the note itself to determine its legal effect: and the defendant could not have been mislead by the misnomer, when the instrument was before him.
Had the note been made a part of the petition, the question of variance could not have arisen. But the petition would have been fatally defective for not averring the ability of the defendant; and a motion in arrest of judgment must have prevailed. The objection to a recovery was not on account of any want of sufficiency in the petition; but because of the variance between the cause of action averred, and that sought to be established by the evidence; and the absence of proof to maintain the action: the suit being upon one cause of action, and the proof admitted conducing to establish not that, but a different cause of action. The objection, therefore, not appearing upon the face of the petition, could not be taken by motion in arrest of judgment; but only by a motion for a new trial, presenting the facts. And such was, in substance, the motion in this case. Though denominated by the party, a *578motion in arrest of judgment, it assigned only causes which could properly be urged in support of a motion for a new trial; which in substance and effect it was, and must be considered.
To authorize the revision of a judgment, on the merits, a formal statement of facts is not essential, where all the evidence legally and conclusively appears by the record. And it may so appear, as in this case, by a bill of exceptions, as well as by a statement of facts.
The evidence would have been admissible, to identify the note described in the petition with that produced upon the trial, under averments truly describing the note.
It is a sufficient answer to the supposed error of the Court in not directing a translation of the note, that it does not appear that application was made to the Court to direct such translation. But the note admitted in evidence was essentially variant from that declared on ; and did not, in itself, constitute a legal foundation on which to base a recovery. The judgment must therefore be reversed and the cause remanded.
Reversed and remanded.