132 N.Y.S. 776 | N.Y. App. Term. | 1912
“was induced to and did sign a paper, which defendant believes to be the paper sued on herein, upon condition and upon the distinct understanding and agreement that this instrument would only be enforceable provided the plaintiff would issue a life insurance policy to the defendant, which policy was to be entirely satisfactory to the defendant, and, if said policy was not satisfactory to the defendant, defendant was not obliged to accept the same, and said instrument was null and void, and not to go into effect or to be enforceable until defendant accepted said policy.”
At the trial the plaintiff introduced the written instrument in evidence, and the trial justice held that it was a negotiable instrument. The defendant then attempted to introduce evidence to sustain the defense; but this evidence was excluded, on the ground that the
“condition which was to be performed before the transaction witnessed by the delivery of the note to the plaintiff and the delivery of the policies and receipt to the defendant was to be regarded as binding and consummated. * * * When the oral testimony goes directly to the question whether there is a written contract or not, it is always competent.”
Regardless, therefore, of the question whether or not the instrument sued upon is a negotiable instrument, the trial justice erred in excluding the testimony as to the condition precedent.
Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.