The result of this case depends upon the proper construction of the instrument of April 8, 1887, given by William H. Marshall to Cunningham & Madden. It was not recorded under the provisions of R. S., c. 111, § 5. If it should have been so recorded then the plaintiff, who now represents Madden as well as himself, as against the defendant who is a subsequent bona fide purchaser, is, by it divested of his title to the horse in question and cannot recover.
The parol testimony offered by the plaintiff to show the transaction was a conditional sarle of the horse, is immaterial, for the instrument itself shows that to “let” one have a horse “for” a specified sum to be paid in specified times, can be understood only as a sale of that horse, especially when accompanied by delivery. The subsequent provision shows the condition.
The statement of facts shows that the delivery of the horse and the written instrument were at the same time and, necessarily, the one must be considered as given for the other. In this respect, this case differs materially from that of Morris v. Lynde, 73 Maine, 88, in which the delivery was made long subsequent *148to that of the written instrument,'which was held, not to be a note given in payment, but an order given for a future delivery of goods described and specifying the terms of payment.
The question then arises was there a note, such as is contemplated in the statute, contained in the written instrument in this case ? This would seem to be settled in the affirmative in Nichols v. Ruggles, 76 Maine, 26. The promise to pay in this case is not so explicit as in that. But an express promise to pay is not necessary, even in a promissory note. Story on Promissory Notes, § 12 and cases cited. It is sufficient that a debt be created and an obligation to pay it absolutely implied. Carver v. Hayes, 47 Maine, 257. In Almg v. Winslow, 126 Mass. 343, it is said “there need not be a promise in express terms, it being sufficient if an undertaking to pay is implied in the contents of the instrument.” In Daggett v. Daggett, 124 Mass., on page 150 it is said, “The test question is: are the words of the memo, randum merely an acknowledgment admitting that an old debt is dire, or do they import a promise to pay money to the plaintiff’s intestate ?”
Thus it appears that this instrument comes not only within the spirit of the statute but the letter also. It was given for a horse bargained and delivered, the price of which was definitely fixed and the times of payment specified. The terms used are not an acknowledgment of an old debt, for none existed. It was created by this transaction and its creation necessarily imports a promise to pay. The ease shows that both parties so understood it.
Plaintiff nonsuit.
Peters, C. J., Virgin, Libbey, Emery and Foster, JJ., concurred.