114 Ind. 320 | Ind. | 1888
The complaint of the appellee is founded on
The note and the agreement, having been executed at the same time, constitute one contract. Hickman v. Rayl, 55 Ind. 551; Allen v. Nofsinger, 13 Ind. 494. But, while we agree with appellant upon this point, we can not agree that he can defeat this action without returning, or offering to return, the certificate issued to him. Conceding, but not deciding, that the stipulation in the contract constitutes a condition, it is, if a condition at all, a condition subsequent and not precedent. New Haven, etc., Co. v. Hayden, 107 Mass. 525.
The title to the perpetual scholarship passed to the appellant, and lie was entitled to make such use of it as he saw proper. It bound the appellee to furnish tuition for one scholar, and the only method in which, the appellant could avoid his note was by an answer averring that he had not used the certificate and had returned or tendered it to the appellee. In such a case as_ this, the consideration for the promise is the right to a scholarship, and this right the promisor may elect to avail himself of, and if he does he waives the condition. As he does not aver that he did not use the certificate, nor that he offered to return it, his answer is bad. It may, perhaps, be true that he might retain the certificate and recoup the damages, if any, caused by a failure to sell ten thousand dollars’ worth of certificates as agreed, but the answer before us presents no such question, for the failure to procure ten thousand dollars’ worth of certificates is pleaded as an absolute defence to the note.
Judgment affirmed.