First Nat. Bank v. Alton

• Decision Date: 20 April 1891
• Citation: 60 Conn. 402,22 A. 1010
• Court: Connecticut Supreme Court
• Parties: FIRST NAT. BANK et al. v. ALTON.

22 A. 1010

60 Conn. 402

FIRST NAT. BANK et al.

v. ALTON.

Supreme Court of Errors of Connecticut.

April 20, 1891.

Appeal from superior court, Windham county; Prentice, Judge.

Action against James R Alton, as indorser of a negotiable note, by the First National Bank of Webster and others. Judgment for defendant, and plaintiffs appeal. Affirmed.

W. S. Gould and C. E. Searls, for appellant.

W. S. B. Hopkins, for appellee.

FENN, J. in March, 1889, one William H. Walker carried to the plaintiffs' bank an instrument in writing, which read as follows: "$150. So. Woodstock, Ct., March 4, 1889. Received of W. H. Walker, this day, one bay horse, Vinton horse, one express wagon, for which I promise to pay said Walker or order one hundred and fifty dollars, five months from date, at First Nat. Bank, Webster, with interest at — per cent. Said property to be and remain the entire and absolute property of said Walker until paid in full by me. And I hereby agree not to sell or dispose of and to keep said property in good order and condition as the same now is. And should said horse die before said sum is fully paid, I hereby agree to pay all sums due thereon. And should said property be returned to or taken back by said Walker, I agree that all payments made thereon may be retained by said Walker for the use of said property. C harles H. M oore">." This instrument was indorsed by Walker and by the defendant, and Walker requested the plaintiffs to discount the same. The plaintiffs did so, crediting the proceeds to Walker. They relied largely upon the strength of the defendant's indorsement. The defendant had indorsed it at Walker's request, solely for his accommodation, and without consideration. All the parties, plaintiffs defendant, and Walker, supposed the instrument to be a negotiable promissory note. The plaintiffs had previously discounted similar instruments for Walker, bearing the defendant's indorsement, and prior to January 1, 1889, one of the plaintiffs' directors asked the defendant for a statement as to his financial condition and the amount of his indorsements for Walker. The defendant gave the information, and said that he understood that he was holden to pay in case Walker did not. In June, 1889, Walker fled, making no provision for the payment of his indebtedness to the plaintiffs, who, when the instrument became due, caused it to be protested, and gave the defendant notice. Nothing appears in the finding in reference to Moore, or to the subsequent history of the property described in the instrument. The defendant in the court below had judgment, and the plaintiffs appeal.

The plaintiffs' counsel, in their brief, say that the essential question in the case is whether the instrument in suit is a promissory note; and in this statement we concur. They then quote from 3 Kent, Comm. (12th Ed.) 92, the following. "A promissory note is (1) a promise to pay money, (2) at a certain time, (3) to a person named, (4) absolutely and at all events. "Without stopping to consider whether an instrument might not contain all these elements and still fail to be a promissory note, we will come directly to the question whether the instrument declared on does contain them. Nor will it be necessary to look at more than the last essential. Is there a promise to pay "absolutely and at all events?" We think not. The transaction evidenced by the instrument is clearly of the nature of what has so often been the subject of discussion and consideration in this court, a conditional sale, or, in other words, an executory contract for sale. To hold it other wise would be inconsistent with a score of cases in this jurisdiction, among which may be cited Forbes v. Marsh. 15 Conn. 384; Tomlinsou v. Roberts, 25 Conn. 477; Cragin v. Coe, 29 Conn. 51; Lucas v. Birdsey, 41 Conn. 357; Hine v. Roberts, 48 Conn. 207. New Haven Wire Co. Cases, 57 Conn. 352, 18 Atl. Rep. 268, may also be cited. But it is not only a conditional sale, the condition being expressed in the same instrument with the promise to pay, and not apart from it, as in most of the cases cited above, but the option to determine as to whether the sale shall become absolute is not, as in the case of Appleton v. Library Corp., 53 Conn. 4, and the very recent care of Beach's Appeal from Comm...