Daily globe., 1879-03-21
The Third National Bank of Syracuse, N Y,
appellant, vs. Daniel Armstrong, respon.

Ns 1ss
appellant, vs.. Daniel Armstrong, respon-
ent.
Opinion-The promise upon which recov-
cry is sought in this action, as upon q nego-
table promissory note, forms bnt a part of the
written instrument, which was made and exc
cuted by the defendant as an entirety. In de-
.termining the character and legal effect of such
promise, regard must be had to the whole in
strument and all its provisions, irrespective Of
the fact that the promise was put in the form
OF negotiable promissory note, payable to
order. and was designated as note in the in
strum MT. Thus considered, it is obvious that
the defendants obligation was not such an in
dependent, absolute and unconditional one,
Tor the pay ment of precise and definite sum
OF money at all events, and without any con-
tingency, as is essential to the validity Of COM
merclal paper. l Parsons, Bills and Notes, 80,
sec. 5, chap. 8: Story, Prom. Notes, sec a.
1t appears upon the face of the instrument
that the defendants obligation to the Williams
Mower and Reaper company, the assignor Of
the plaintiff, was upon the sole condition. that
the reaper therein mentioned, and beloneinp
10 the company, the possession of which was
then conditionally delivered to him, should by
proper transfer of title from the company be-
come.his absolute property, whenever and as
soon as his said obligation was fulfilled in ac-
cordance with the terms of the contract
It also expressly provided that the title and
ownership OF the reaper should remain in the
company until full payment of the so-called
note ana interest," and that the delivery of the
property at that time was subject to this CON
dltlon, and to the right of the company to re-
take possession at any time it might deem itself
insecure. Defendants promise, therefore. was
not an absolute and unconditional one. to he
Kept IN any event. for it depended upon the
contingency of an observance by the companv
OF the sole condition on which it rested. that
an absolute transfer of the property, with good
title, would be made whenever the promise was
performed. The promise of payment and the
Implied obligation to transfer the title were
mutual, as each was the sole consideration for
the other, and both were to be performed at the
same time. They were concurrent conditions
OF the same agreement, in the nature of mutual
conditions precedent, so that inability or re-
Iusal 70 perform the one would excuse per-
1ormance OF the other. BENZ. on Sales, 45l and
48O, IL prior TO any default ON The part of the
defendant, the company had retaken possession
of the property and disposed of it, 40 that upon
the maturity of the defendants obligation an
obse. vance of the condition on its part had be-
come lmpossiblc, there can be no doubt that
under such circumstances no action could have
been maintained against him upon his promise.
An obligation of this character is altogether
too uncertain to serve the purpose of CONNER
cial paper as the representative of money in
business transactions. It carries into tho hand.
of every holder notice of the existence of a
condition that may result in defeating anv re-
covery upon it, and, therefore, cannot have
accorded to it the privileges attaching to Chat
kind of paper.
The judgment of the district court is affirmed.
CORNELL. j,