Brownfield

dissenting:

I see this case differently than the majority, and therefore must respectfully dissent.

I.

Defendant William Brownfield owned a one-third share in Walla Walla Keystone, LLC, as did Plaintiff Bob Evans and a third partner, Kurt Schweitzer. Evans and Schweitzer contributed start-up capital for the firm. Instead of paying his share out of pocket, Brownfield asked Ev *461 ans to loan him the money—totaling approximately $200,000—on the expectation that the debt would be repaid when Walla Walla Keystone became profitable. The loans from Evans were evidenced by six documents executed by Brownfield. These documents each were titled “Promissory Note” and recite the amount “borrow[ed].” The first two documents provide: “This amount is to be repaid in full from the first profits generated in [Brownfield’s] name from Walla Walla Keystone.” The last four documents include this language, and add “or as otherwise agreed.”

Before executing the fifth note, Brownfield agreed to make payments on the debts, even though Walla Walla Keystone was never profitable. Brownfield followed this agreement and paid Evans approximately $40,000 by allowing Evans to withhold money from the…

MEMORANDUM *

William G. Brownfield appeals summary judgment granted Bob Evans on certain notes signed by Brownfield acknowledging indebtedness to Evans. The parties are familiar with the facts. We proceed with the law.

Under § 3-108 of the Uniform Commercial Code (the UCC), adopted by Washington as Wash. Rev.Code Ann. § 62A.3-108 (2008), “an instrument is not payable on demand where it is payable upon a contingency limiting the discretion of the holder to determine the time of payment.” 6 William D. Hawkland & Larry Lawrence, Uniform Commercial Code Series § 3-108:1 (1999). Six notes signed by Brownfield each stated that they were “to be paid from the first profits generated in my name” from a partnership formed by Evans with Brownfield or as “otherwise agreed.” As there were no profits, the condition was not met. No evidence was tendered as to what was otherwise agreed. The notes, therefore, were not payable on demand.

Evans argues (1) that Brownfield made some payments on the notes and (2) that the corporate minutes refer to Brownfield’s indebtedness. Neither observation serves to transform the notes into demand obligations. A trial is necessary to establish the facts of…