218 Mass. 30 | Mass. | 1914
We assume, as the counsel for the respective parties have assumed at the argument and in their briefs, that the promissory notes in suit were delivered to the payee in this Commonwealth and are governed by our negotiable instruments act found in the R. L. c. 73. Nashua Savings Bank v. Sayles, 184 Mass. 520, 522. American Malting Co. v. Souther Brewing Co. 194 Mass. 89.
The plaintiff bank is the indorsee, and the presiding judge was warranted upon the evidence in finding, that it is a holder in due course unless the words “as per terms of contract” written by the defendant on the face of each note after the words “Value received” make his promise as maker conditional upon the performance by the payee of the preceding contract between them appearing in the record for the sale and shipment of lumber. The defendant urges, that, the words having been placed upon the notes before delivery, the original parties must have intended to incorporate this contract, and that negotiability is lacking, because a sum certain is not payable at a time fixed in the future. Costello v. Crowell, 127 Mass. 293. R. L. c. 73, § 18, cl. 3. If the words had been, “subject to the contract for lumber,” or even “subject to the contract,” the principle inv'oked would have been applicable. The notes would not have been the defendant’s unconditional promise to pay a definite sum. Hubbard v. Mosely, 11 Gray, 170. American Exchange Bank v. Blanchard, 7 Allen, 333. Sloan v. McCarty, 134 Mass. 245. But, while the defendant doubtless intended to guard against the payment of money for which in the future he did not receive an equivalent, and the payee has gone into bankruptcy, the language used does not affect the payment of the amounts shown by the notes. By their position, the words well might lead the plaintiff, who is not charged with actual notice, to understand that they were not to be disconnected and applied to an independent outstanding agreement by which the promise was to be modified or restricted,
So ordered.
