The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1888-04-01
An Important Decision by
Judge Zane.
THEY ARE NOT NEGOTIABLE
The Decision In Full, which Our
Country FrIends should Paste
In Their Hats.

Zane in the suit of the Star Wagon
Company. plaintiff, VS.. Thomas Burt
and John F. Burton, defendants. AS,
however, the decision is most impor-
tant one, affecting, IS 1t does, great
many people throughout this and ad
Joining Territories, We give it in full.
The Judge in deciding the matter, said:
This is ali action upon promissory
note, in which the defendants promise
to nav, on or before the first Gay OF
November, 1884. $3.50, to one Z. War
mock, land if net paid at maturity, with
interest at the rate OF II per cent. per
annum from maturity, with expenses
of collection, or 10 per cent. additional
as fees if placed IN the hands of an at
torney or justice of the peace for col
lection. The express condition OF the
sale and purchase OF the Thompson
havrake, for which this note is givt Il, is
snch that the title or possession does
not pass from, but shall remain in said
r. Warnock until this note and interest
is paid in full. And that the said, K.
w NJ "
fuli power to declare this note due and
take possession of the said Thompson
hayrake at any time that they deem
themselves insecure, even before the
maturity of the note"
THE STIPULATION FILED
in the case shows that the note was en-
dorsed by Warnock for valuable con-
sideration to the plaintiff, before it was
due. it further appears that the
makers of the note paid it in full at the
maturity to Z Warnock, and that they
had no knowledge or information what
ever, that the note had been assigned
or transferred to the plaintiff. They
made the payment with the under
standing and belief that Warnock was
still the owner.
The question is, is this negoti 4ble
Instrument Did the assignee take it
subject to any proper defense against
| it in the hands of the paye9 OF the note?
| The defendants insist that it is nOn-ne-
eotiable, First, because it provides that
| the maker shall pay tho expenses Of
collection or 10 per cent. additional fees,
if placed ia the hands OF a justice of
the peace or attorney for collection;
and Second, that the agreement that
the title or possession does not pass
from, but shall remain in said Z. War
mock until the note with interest Is
paid, and that Warnock or his assigns
may at any time they deem themselves
insecure, even before maturity, declare
| the note due, and proceed to collect it.
Speaking with reference to the pro-
vision for the payment OF the expenses
rnvhN -
ity, and Of opinion, is that that does
not render the note non -negotiabl BILE !;
that it may be negotiated notwithstand-
ing such provision.
BUT THE QUESTION IS
as to the contract. that the title to this
| hayrake shall remain with the psyee.
and the further provision that the
psyee may declare the note due at any
time, and may take possession of the
rake. even before the ote becomes due
i-whether that is such 3 contract as
prevents the note from being negotia-
BILE.
breads from Daniel on Negotiable In
struments, Sec.
It would seem that that has reference
to the payment of money in conse-
quence of the failure to pay the note
according to its terms.
The case of KIllam vs.. Schoeps, re-
ported in the Fortieth American Re-
ports, page 3l3. and in the Twenty
sixth Kansas Reports, 314, relates to
this question. The paper is similar &c
the one sued on in this case. The ques.
ton was as to whether the paper was
&c Tt,ck
Brewer, who says: This question
contract stated in this instrument is moi
simply promise to pay, but a stipua-
ton concerning the title TO property
and a promise in reference to the future
disposition of such property. 1t is
essential to the negotiability of iper
that there is in it but the single promise
to pay money. You may not incor
porate with such promise stipulstioni
and agreements as to other matters
and then say that the absolute promi 4
| to pay money lifts the contract into III!
region of negotiable paper. This is thu
general rule. and whatever exceptions
there may be. this Is not one. in l
Daniel on Negotiable Instrumt nts
Section So, the rule is thus stated: IL
the sixth place, it is essential to tn
, negotiabillty of the bill or note that i
pnrport to be only for tue paymen
of mon y. Such. at least, may b'
stated to be the general rule; for II all,
other agreement of different characte
be engrafted upon it. 1t becomes
: special contract, clogged aod involve
with other matters, and has bee
deemed to lose thereby, its CHI ararte
, as a commercial instrument. Now, thi
instrument
TOUCHES OTHER MATTERS,
and contains other stipulations an
provisions than those respecting tn
payment of money. 1t is contract
" respect to the title to property. tt
| also a contract for the possession {
property, and because of these add
tional stipuIations, it is somethin
, more than a simple promise to pa