6 Cow. 108 | N.Y. Sup. Ct. | 1826
Curia, per
The essential qualities of a bill or note, are 1. That it be pavable at all events : not
Is not the instrumnnt declared on payable upon a contingency ? From the face of the instrument itself, it appears that the drawers had, on the 19⅛ of April preceding its date, given their note for $400, to Wm. and H. B. Cook ; and the object of drawing the instrument in question, was to take up that note. The engagement of the acceptors must be construed according to what is required of them by the drawers. The note was supposed to be in possession of the*payee or holder of the bill, and the payment of the money and taking up the note of the drawers, must be simultaneous acts. The acceptors could not take up the note till it was presented ; nor were they bound to pay the money till the plaintiff was ready, and offered to enable them to take up the note. It seems to sne, therefore, that substantially this instrument is payable upon a contingency ; and is the same as if it had said, “ Pay W. C. $400, on his giving up our note,” &c. Had such been the form, it would clearly not be technically a bill of exchange. The holder, in declaring upon it, should aver his readiness to deliver up the note. Upon a contrary doctrine, the defendants may be compelled to pay the bill; and the drawers to pay the note, provided it has been transferred before due.
The defendants are entitled to judgment, with leave to amend on the usual terms.
Rule accordingly.