Mann Construction Co., Inc. - Page 14




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          until after he had lost his job at another firm.  We found this             
          testimony credible in itself.  Moreover, it is supported by the             
          fact that Mark made some repayments while he worked for a company           
          other than petitioner.  Because one generally does not make                 
          gratuitous payments to his creditors, these repayments strongly             
          suggest that Mark's promise and obligation to repay were not                
          limited to his earnings from petitioner.                                    
               In addition, the language in the note referring to Mark's              
          earnings does not stand alone.  It follows a sentence stating               
          Mark Mann's clear and unconditional promise to repay the advances           
          in full.                                                                    
               When a contract contains both an unambiguous, unconditional            
          promise to pay, and language that appears to limit the payment              
          promise to a specified fund, courts are reluctant to find that              
          the limiting language governs.  As the Supreme Court of Oregon              
          also wrote in Mignot v. Parkhill, supra at 759, in finding that a           
          contractor's promise to pay for work performed was not                      
          contingent, notwithstanding a provision that the contractor was             
          not obligated to pay until he had himself received payment:                 
               We think, however, that where the contract contains a                  
               definite and unambiguous promise to pay * * * equally                  
               clear and unambiguous language, expressing the                         
               intention that the happening of a contingency over                     
               which the promisee has no control shall be a condition                 
               precedent to payment, must be found in the contract                    
               before the positive and absolute agreement to pay will                 
               be considered as superseded.  * * *                                    






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