The maker executed in the Illinois and delivered to the promisee
a series of notes, one of which was acquired by a
bona
fide endorsee, and was as follows:
"$5000. Chicago, Ill., January 20, A.D. 1884. For value
received, four months after date, the Chicago Railway Equipment
Company promise to pay to the order of the Northwestern
Manufacturing and Car Company of Stillwater, Minnesota, five
thousand dollars at First Nat. Bank of Chicago, Illinois, with
interest thereon at the rate of ___ percent per annum, from date
until paid. This note is one of a series of twenty-five notes of
even date herewith of the sum of five thousand dollars each, and
shall become due and payable to the holder on the failure of the
maker to pay the principal and interest of any one of the notes of
said series, and all of said notes are given for the purchase price
of two hundred and fifty railway freight cars manufactured by the
payee hereof and sold by said payee to the maker hereof, which cars
are numbered from 13,000 to 13,249, inclusive, and marked on the
side thereof with the words and letters Blue Line C. & E. I. R.
Co., and it is agreed by the maker hereof that the title to said
cars shall remain in the said payee until all the notes of said
series, both principal and interest, are fully paid, all of said
notes being equally and ratably secured on said cars. No. 1. Geo.
B. Burrows, Vice-President. Countersigned by E.D. Buffington,
Treas."
Held:
(1) That this was a negotiable promissory note according to the
statute of Illinois, where it was made, as well as by the general
mercantile law.
(2) That its negotiability was not affected by the fact that the
title to the cars for which it was given remained in the vendor
until all the notes of the same series were fully paid, the title
being so
Page 136 U. S. 269
retained only by way of security for the payment of the notes,
and the agreement for the retention for that purpose being a short
form of chattel mortgage.
(3) That its negotiability was not affected by the fact that it
might at the option of the holder, and by reason of the default of
the maker, become due at a date earlier than that filed.
MR. JUSTICE HARLAN, in the opinion of the Court, stated the case
as follows:
This action was brought by the Merchants' National Bank of
Chicago against the Chicago Railway Equipment Company, a
corporation of Wisconsin, upon two written instruments, one of
which is in the words and figures following:
"$5,000 Chicago, Ill., January 20, A.D. 1884"
"For value received, four months after date, the Chicago Railway
Equipment Company promise to pay to the order of the Northwestern
Manufacturing and Car Company of Stillwater, Minnesota, five
thousand dollars each, and shall become due and payable to the
holder on the failure of the maker to pay the principal and
interest of any one of the notes of said series, and all of said
notes are given for the purchase price of two hundred and fifty
railway freight cars manufactured by the payee hereof and sold by
said payee to the maker hereof, which cars are numbered from 13,000
to 13,249 inclusive, and marked on the side thereof with the words
and letters Blue Line C. & E. I. R.R. Co., and it is agreed by
the maker hereof that the title to said cars shall remain in the
said payee until all the notes of said series, both principal and
interest, are fully paid, all of said notes being equally and
ratably secured on said cars."
"No. 1 Geo. R. Burrows,
Vice President"
"Countersigned by E. D. Buffington, Treasurer."
This writing is endorsed: "Northwestern Manufacturing and Car
Co., per J. C. Gorman, Treas."
Page 136 U. S. 270
The other instrument bears the same date, and is in all respects
similar to the first one. No question is made as to the genuineness
of the signatures to these instruments of the vice-president and
treasurer of the defendant, nor as to the plaintiff's having paid
value for them on maturity. They were declared upon as negotiable
promissory notes. In support of the defense, certain evidence was
offered that was excluded, and the jury, pursuant to the direction
of the court, returned a verdict in favor of the plaintiff for the
full amount of the two instruments. 25 F. 809.
Page 136 U. S. 275
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Are the writings in suit to be regarded as promissory notes, to
be protected, in the hands of
bona fide holders for value,
according to the rules of general mercantile law as applicable to
negotiable instruments, or are they anything more than simple
contracts, subject, in the hands of transferees, to such equities
and defenses as would be available between the original parties?
This is the question upon which, it is conceded, depends the
correctness of the several rulings to which the assignments of
error refer.
By the statute of Illinois revising the law in relation to
promissory notes, bonds, due-bills, and other instruments in
writing, approved March 18, 1874, and in force July 1, 1874,
(Rev.Stats. Illinois 1874, p. 718; 2 Starr & Curtis' Anno.Stat.
1651, c. 98; Rev.Stats. 1845, p. 384), it is provided:
"SEC. 3. All promissory notes, bonds, due-bills, and other
instruments in writing, made or to be made by any person, body
politic or corporate, whereby such person promises or agrees to pay
any sum of money or article of personal property, or any sum of
money in personal property, or acknowledges any sum of money or
article of personal property to be due to any other person shall be
taken to be due and payable, and the sum of money or article of
personal property therein mentioned shall, by virtue thereof, be
due and payable as therein expressed."
"SEC. 4. Any such note, bond, bill, or other instrument in
writing made payable to any person named as payee therein shall be
assignable by endorsement thereon under the hand of such person and
of his assignees in the same manner as bills of exchange are, so as
absolutely to transfer and vest the property thereof in each and
every assignee successively."
Other sections of the statute throw some light on the
question
Page 136 U. S. 276
before us. The fifth section provides that any assignee to whom
such sum of money or personal property is by endorsement made
payable, or, he being dead, his executor or administrator, may in
his own name institute and maintain the same kind of action for the
recovery thereof against the person making and executing the note,
bond, bill, or other instrument in writing, or against his heirs,
executors, or administrators, as might have been maintained against
him by the obligee or payee, in case it had not been assigned. By
the sixth section, no maker of or other person liable on such note,
bond, bill, or other instrument in writing is allowed to allege
payment to the payee made after notice of assignment as a defense
against the assignee. The eighth section provides:
"Any note, bond, bill, or other instrument in writing, made
payable to bearer, may be transferred by delivery thereof, and an
action may be maintained thereon in the name of the holder thereof.
Every endorser of any instrument mentioned in this section shall be
held as a guarantor of payment, unless otherwise expressed in the
endorsement."
The ninth section allows the defendant, when sued upon a note,
bond, or other instrument in writing for the payment of money or
property or the performance of covenants or conditions, to prove
the want or failure of consideration:
provided that nothing in this section contained
shall be construed to affect or impair the right of any bona
fide assignee of any instrument made assignable by this act
when such assignment was made before such instrument became
due.
The eleventh section provides that
"If any such note, bond, bill, or other instrument in writing
shall be endorsed after the same becomes due, and any endorsee
shall institute an action thereon against the maker of the same,
the defendant, being maker, shall be allowed to set up the same
defense that he might have done had the action been instituted in
the name and for the use of the person to whom such instrument was
originally made payable, or any intermediate holder."
Under the twelfth section, if the instrument has been assigned
or transferred by delivery to the plaintiff after it became
due,
a set-off to the amount of the plaintiff's debt may be made of a
demand existing against any
Page 136 U. S. 277
person or persons who shall have assigned or transferred such
instrument after it became due, if the demand be such as might have
been set off against the assignor, while the note or bill belonged
to him.
If the instrument is assigned before the day the money or
property therein mentioned becomes due and payable, then, by the
thirteenth section, the defendant, in an action brought by the
assignee, is allowed to give in evidence at the trial any money or
property actually paid on the note, bond, or bill, or other
instrument in writing before it was assigned to the plaintiff, on
proving that the plaintiff had "sufficient notice of the said
payment before he accepted or received such assignment."
It is contended by the defendant that these statutory
provisions, so far as they embrace instruments not negotiable at
common law, relate only to the manner of their endorsement or
transfer, and that the endorsee takes them, as before the statute,
subject to all the defenses that might be interposed in an action
between the original parties. This view is inconsistent with the
decisions of the Supreme Court of Illinois. Some of these decisions
will be referred to as indicating the scope and effect of the local
statute, as well as the views of that court upon the general
principles of commercial law involved in this case.
In
Stewart v. Smith, 28 Ill. 397, 406, 408, the
principal question was as to the negotiability under the above
statute of the following instrument:
"Chicago, 21st of January, 1859. Received from teams in our pork
house, No. 114 West Harrison Street, 280 hogs, weighing 45,545
pounds, the product of which we promise to deliver to the order of
Messrs. Stevens & Brother endorsed hereon. G. & J.
STEWART."
The court said:
"Testing the writing by this statute, there cannot be a doubt
upon its assignability. It is an instrument in writing. It purports
to be made by persons. By it those persons promise and agree to
deliver a certain article of personal property to the order of
certain other persons. By force of the statute, this article of
personal property mentioned in the instrument of writing so made,
by virtue of its being so mentioned and in such form of words, must
be
Page 136 U. S. 278
taken to be due and payable to the person to whom the instrument
in writing is made. The statute does not require that the note or
instrument in writing shall be payable at any particular time or
place, or be expressed for value received, or that any
consideration whatever should appear in the writings. An
acknowledgment of indebtedness, in the simplest form, would seem to
be all the statute requires to give it the character of
negotiability. A writing in this form, probably the simplest, would
be a perfect negotiable note under this statute: 'Due John Brown
ten thousand dollars. July 4, 1862,' and signed by the maker. Such
an instrument is clothed with all the attributes of negotiability,
and imports a consideration, and no averments or proofs are
necessary on those points. . . . The other point made by
plaintiffs, that the instrument was overdue on the 26th of January,
1859, when it was endorsed, to such an extent as to put a prudent
man upon inquiry in respect to all equities which the makers might
have against it in the hands of the promisee, we do not consider a
strong one. . . . The endorsement, being in season, cuts off all
equities, if there were any, in defendant's favor, and the only
hazard incurred in holding it back for payment was that the release
of the endorsers might have been caused by it, but not the release
of the maker."
In
Cisne v. Chidester, 85 Ill. 524, the action was upon
the following note:
"$120. May 2, 1871. On the first day of September, 1871 (or
before, if made out of the sale of J. B. Drake's horse hay fork and
hay carrier), I promise to pay James B. Drake, or to order, one
hundred and twenty dollars, for value received, with use."
On this note was an endorsement by Drake to Chamberlain, and by
the latter to Chidester. The trial court instructed the jury that
in the hands of an assignee before maturity, the question of
consideration did not arise until it was shown by evidence that the
assignee purchased the note with actual knowledge of the want of
consideration, and also that the note was, in its effect, payable
absolutely on the 1st day of September, 1871, with interest at six
percent from date. The Supreme Court of Illinois said:
"The pleas were the general issue and fraud and
circumvention
Page 136 U. S. 279
in obtaining the making of the note. There was no evidence
whatever as to the time of the endorsement of the note or of any
want of good faith in, or notice of the endorsee in respect to, the
consideration of the note or the circumstances under which it was
given more than appears upon the face of the note itself. The
plaintiff was presumed to be a
bona fide endorsee of the
note for a valuable consideration. As against the plaintiff, there
was, under the evidence, no question of consideration before the
jury, and the giving of the first instruction could form no just
cause of complaint. The construction of the note was a question of
law, and for the court. The proper construction was put upon the
note."
In
White v. Smith, 77 Ill. 351, 352, the principle was
said to be undoubted that, to constitute a valid promissory note,
it must be for the payment of money, which will certainly become
due and payable one time or another, though it may be uncertain
when that time will come. In
Bank v. McCrea, 106 Ill. 281,
289, 292, the court, construing the local statute, said that it did
not embrace
"covenants or agreements for the performance of individual
services in and about property -- mutual, dependent, and
conditional covenants and agreements, or covenants and agreements
to pay money or deliver property upon uncertain contingencies or
events,"
but applied "only to absolute and unconditional promises to pay
money or deliver property." It was further said to be clear under
previous cases that "the promise or undertaking must be restricted
to the payment of money or delivery of property at a time that will
certainly happen." "It may be," the court added,
"unknown in advance when it will be, but it must be absolutely
certain that it will be sometime, and although it may be within the
power of the party to whom the promise is made to render it certain
by his subsequent act that the time will happen, this will not be
sufficient. It cannot depend upon his will or pleasure."
See also Harlow v. Boswell, 15 Ill. 56;
McCarty v.
Howell, 24 Ill. 341;
Bilderback v. Burlingame, 27
Ill. 338;
Houghton v. Francis, 29 Ill. 244;
Baird v.
Underwood, 74 Ill. 176.
Page 136 U. S. 280
It is clear from these cases that the statute of Illinois has a
much wider scope than the counsel for the defendant supposes. It
evidently intended to place negotiable promissory notes in the
hands of
bona fide holders for value on the same footing,
substantially, that they occupy under the general rules of the
mercantile law. It does not, in our judgment, do anything more. So
that we are to inquire whether the notes in suit are not negotiable
securities according to the custom and usages of merchants.
The defendant insists that in view of the agreement for the
retention by the payee of the title to the cars until all the notes
of the same series, principal and interest, are fully paid, the
transaction was only a conditional sale of the cars. It is
contended that the promise to pay the notes given for the price, so
far from being absolute as required by the mercantile law, is
subject to the condition, running with the notes, that the title to
the cars should not pass until all the notes were paid, which could
not occur if, before payment, the cars had been destroyed or sold
to other parties. The fact that, by agreement, the title is to
remain in the vendor of personal property until the notes for the
price are paid does not necessarily import that the transaction was
a conditional sale. Each case must depend upon its special
circumstances. In
Heryford v. Davis, 102 U.
S. 235,
102 U. S.
243-246, the question was as to whether a certain
instrument relating to cars supplied to a railway company, and for
the price of which the latter gave its notes, showed a conditional
sale, which did not pass the ownership until the conditions were
performed, or whether, taking the whole instrument together, the
seller reserved only a lien or security for the payment of the
price, or what is sometimes called a mortgage back to the vendor.
In that case, the instrument construed provided that until a
certain payment was made, the railway company should have no right,
title, claim, nor interest in the cars delivered to it, "except as
to their use or hire," nor any right or authority in any way to
dispose of, hire, sell, mortgage, or pledge the same, but that they
"are and shall remain the property" of the manufacturing company,
and be redelivered to it when demanded,
Page 136 U. S. 281
upon default in the above payment. This Court, after observing
that the true construction of the contract was not to be found in
any name which the parties may have given to the instrument, nor
alone in any particular provisions it contained, disconnected from
all others, but in the ruling intention of the parties, gathered
from all the language used, said:
"It is the legal effect of the whole which is to be sought for.
The form of the instrument is of little account. Though the
contract industriously and repeatedly spoke of loaning the cars to
the railroad company for hire for four months and delivering them
for use for hire, it is manifest that no mere bailment for hire was
intended. No price for the hire was mentioned or alluded to, and in
every bailment or letting for hire, a price or compensation for the
hire is essential. . . . It is quite unmeaning for parties to a
contract to say it shall not amount to a sale when it contains
every element of a sale and transmission of ownership. This part of
the contract is to be construed in connection with the other
provisions, so that if possible, or so far as is possible, they may
all harmonize. Thus construed, it is quite plain these stipulations
were inserted to enable the manufacturing company to enforce
payment not of any rent or hire, but of the selling price of the
cars for which the company took the notes of the railroad company.
They were intended as additional security for the payment of the
debt the latter company assumed. This is shown most clearly by the
other provisions of the contract. The notes became the absolute
property of the vendors. As has been stated, they all fell due
within four months, and it was expected they would be paid. The
vendors were expressly allowed to collect them at their maturity,
and it was agreed that whatever sums should be collected on account
of them should be retained by the vendors for their own use. No
part of the money was to be returned to the railroad company in any
event, not even if the cars should be returned. . . . What was this
but treating the notes given for the sum agreed to be the price of
the cars as a debt absolutely due to the vendors? What was it but
treating the cars as a security for the debt? . . . In view of
Page 136 U. S. 282
these provisions, we can come to no other conclusion than that
it was the intention of the parties, manifested by the agreement,
the ownership of the cars should pass at once to the railroad
company in consideration of their becoming debtors for the price.
Notwithstanding the efforts to cover up the real nature of the
contract, its substance was an hypothecation of the cars to secure
a debt due to the vendors for the price of a sale. The railroad
company was not accorded an option to buy or not. They were bound
to pay the price either by paying their notes or surrendering the
property to be sold in order to make payment. This was in no sense
a conditional sale. This giving property as security for the
payment of a debt is the very essence of a mortgage, which has no
existence in a case of conditional sale."
It is a mistake to suppose that there is any conflict between
these views and those expressed in the subsequent case of
Harkness v. Russell, 118 U. S. 663,
118 U. S. 680,
where the whole doctrine of conditional sales of personal property
was carefully examined, and in which the particular instrument
there in question was held to import not an absolute sale, but only
an agreement to sell upon condition that the purchasers should pay
their notes at maturity. With the principles laid down in the
latter case we are entirely satisfied. But as pointed out in
Cattle Co. v. Mann, 130 U. S. 69,
130 U. S. 77-78,
the agreement in
Harkness v. Russell was upon the express
condition that neither the title, ownership, nor possession of the
engine and sawmill which was the subject of the transaction should
pass from the vendor until the note given by the vendee for the
stipulated price was paid. Turning to the notes here in suit, we
find every element of a sale and transmission of ownership despite
the provision that the title to the cars should remain in the payee
until all the notes of the series were fully paid. The notes, upon
their face, show they were given for the "purchase price" of cars
"sold" by the payee to the maker, and they are "secured" equally
and ratably on the cars, in order to prevent the holder of one of
the notes from obtaining out of the common security a preference
over holders of others of the same series. This provision placed
the parties
Page 136 U. S. 283
upon the same footing they would have occupied if a chattel
mortgage covering all the notes had been executed by the purchaser
of the cars. If the notes had been in the usual form of promissory
notes, and the maker had given a mortgage back to the payee, the
title would technically have been in the payee until they were
paid. But they would in such case have been negotiable securities,
protected in the hands of
bona fide holders for value
against secret defenses, and their immunity from such defenses
would have been communicated to the mortgage itself. In
Kenicott v.
Supervisors, 16 Wall. 452,
83 U. S. 469,
it was said that where a note secured by a mortgage is transferred
to a
bona fide holder for value before maturity, and a
bill is filed to foreclose the mortgage, no other or further
defenses are allowed against the mortgage than would be allowed
were the action brought in a court of law upon the note. To the
same effect is
Carpenter v.
Longan, 16 Wall. 271,
83 U. S. 274.
See also Swift v. Smith, 102 U. S. 442,
102 U. S. 444;
Collins v. Bradbury, 64 Me. 37;
Towne v. Rice,
122 Mass. 67, 73.
The agreement that the title should remain in the payee until
the notes were paid -- it being expressly stated that they were
given for the price of the cars sold by the payee to the maker, and
were secured equally and ratably on the property -- is a short form
of chattel mortgage. The transaction is, in legal effect, what it
would have been if the maker, who purchased the cars, had given a
mortgage back to the payee, securing the notes on the property
until they were all fully paid. The agreement, by which the vendor
retains the title, and by which the notes are secured on the cars,
is collateral to the notes, and does not affect their
negotiability. It does not qualify the promise to pay at the time
fixed, any more than would be done by an agreement of the same kind
embodied in a separate instrument in the form of a mortgage. So far
as the notes upon their face show, the payee did not retain
possession of the cars, but possession was delivered to the maker.
The marks on the cars showed that they were to go into the
possession of the maker, or of its transferee, to be used. The
suggestion that the maker could not have been compelled to pay if
the cars had been destroyed before the maturity of the notes is
Page 136 U. S. 284
without any foundation upon which to rest. The agreement cannot
properly be so construed. The cars having been sold and delivered
to the maker, the payee had no interest remaining in them except by
way of security for the payment of the notes given for the price.
The reservation of the title as security for such payment was not
the reservation of anything in favor of the maker, but was for the
benefit of the payee and all subsequent holders of the paper. The
promise of the maker was unconditional.
Without deciding whether the notes here in suit would or would
not have been negotiable securities if the transaction between the
parties had been a conditional sale, we are of opinion that they
are of the class of instruments that are negotiable according to
the mercantile law, and which, in the hands of a
bona fide
holder for value, are protected against defenses of which the maker
might avail himself if sued by the payee. they are promises in
writing to pay a fixed sum of money to a named person or order at
all events, and at a time which must certainly arrive.
Ackley
School District v. Hall, 113 U. S. 135,
113 U. S.
139-140; Story on Promissory Notes ยง 27;
Cota v.
Buck, 7 Met. 588. It is true that upon the failure of the
maker to pay the principal and interest of any note of the whole
series of twenty-five, the others would become due and payable --
that is, due and payable at the option of the holder. But a
contingency under which a note may become due earlier than the date
fixed is not one that affects its negotiability. In
Ernst v.
Steckman, 74 Penn.Stat. 13, 16, cited with approval in
Cisne v. Chidester, 85 Ill. 525, the question was whether
the following instrument was a negotiable promissory note:
"$375. Paradise, Lancaster Co., Pa. June 11, 1869. Twelve months
after date (or before, if made out of the sale of W. S. Coffman's
improved broadcast seeding machine), I promise to pay to J. S.
Huston or bearer at the First National Bank of Lancaster three
hundred and seventy-five dollars, without defalcation, for value
received, with interest."
It was there contended that the character of the instrument was
changed by the fact that, in the contingency of the sum's being
sooner realized from the sale of the machinery, it might become
Page 136 U. S. 285
payable within the year. The court, after observing that the
general rule to be extracted from the authorities undoubtedly
requires that, to constitute a valid promissory note, it must be
for the payment of money at some fixed period of time, or upon some
event which must inevitably happen, and that its character as a
promissory note cannot depend upon future events, but solely upon
its character when created, said:
"Yet it is an equally well settled rule of commercial law that
it may be made payable at sight, or at a fixed period after sight,
or at a fixed period after notice, or on request, or on demand,
without destroying its negotiable character. The reason for this,
said Lord Tenterden in
Clayton v. Gosling, 5 B. & C.
360, is that it 'was made payable at a time which we must suppose
would arrive.' To the same effect are
Cota v. Buck, 7 Met.
588;
Walker v. Woollen, 54 Ind. 164;
Woollen v.
Ulrich, 64 Ind. 120;
Charlton v. Reed, 61 Ia. 166;
Andrews v. Franklin, 1 Strange 24;
Cooke v. Horn,
29 Law Times (N.S.) 369."
Upon like grounds, it has been held that the negotiability of
the note is not affected by its being made payable on or before a
named date, or in installments of a particular amount. In
Ackley School District v. Hall, 113 U.
S. 135,
113 U. S. 140,
it was held that municipal bonds, issued under a statute providing
that they should be payable at the pleasure of the district at any
time before due, were negotiable, for, the Court said,
"by their terms, they were payable at a time which must
certainly arrive. The holder could not exact payment before the day
fixed in the bonds. The debtor incurred no legal liability for
nonpayment until that day passed."
In
Mattison v. Marks, 31 Mich. 421, which was the case
of a note payable "on or before" a day named, it was said:
"True, the maker may pay sooner if he shall choose, but this
option, if exercised, would be a payment in advance of the legal
liability to pay, and nothing more. Notes like this are common in
commercial transactions, and we are not aware that their negotiable
quality is ever questioned in business dealings."
Carlon v. Kenealy, 12 M. & W. 139;
Colehan v.
Cooke, Willes 393;
Jordan v. Tate, 19 Ohio Stat. 586;
Curtis v. Horn, 58 N.H.
Page 136 U. S. 286
504;
Howard v. Simpkins, 70 Ga. 322;
Protection
Ins. Co. v. Bill, 31 Conn. 534, 538;
Goodloe v.
Taylor, 3 Hawks, 458;
Riker v. Sprague Mfg. Co., 14
R.I. 402. In the last-named case, it was said that if the time of
payment named in the note must certainly come, although the precise
date may not be specified, it is sufficiently certain as to time.
It was consequently held that a reservation in a note of the right
to pay it before maturity, in installments of not less than five
percent of the principal at any time the semiannual interest
becomes payable did not impair its negotiability, the court
observing that a note is negotiable if one certain time of payment
is fixed, although the option of another time of payment be given.
In view of these authorities as well as upon principle, we adjudge
that the negotiability of the notes in suit was not affected by the
provision that, upon the failure of the maker to pay any one of the
notes of the series to which those in suit belonged, the rest
should become due and payable to the holder.
Our conclusion is that the court below did not err in holding
the notes in suit to be negotiable according to the custom and
usage of merchants. They bear upon their face evidence that they
were so intended by the maker and the payee. It was well said by
Judge Bunn at the trial that the inference that anyone
contemplating the purchase of the notes would naturally and
properly draw would be, 25 F. 809, 811,
"that the freight cars had already been sold by the payee to the
maker, and that the payee was to retain a lien and security upon
them, in the way of a mortgage, for the payment of the purchase
price, which would inure equally and ratably to all the holders of
the notes, according to their several amounts, without regard to
the time when such notes should fall due. If this be so, then the
contract was an executed one, the consideration for the notes had
already passed, and the payment of the notes would not be made to
depend upon any condition whatsoever."
Judgment affirmed.
MR. JUSTICE MILLER and MR. JUSTICE GRAY dissented.
MR. JUSTICE BREWER was not a member of the Court when this case
was argued, and took no part in its decision.