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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be considered as superseded.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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