Jennings v. First Nat. Bank

• Decision Date: 08 November 1889
• Citation: 22 P. 777,13 Colo. 417
• Parties: JENNINGS et al. v. FIRST NAT. BANK.
• Court: Colorado Supreme Court

22 P. 777

13 Colo. 417

JENNINGS et al. v. FIRST NAT. BANK.

Supreme Court of Colorado

November 8, 1889

Commissioners' decision. Appeal from county court, El Paso county.

Action on a promissory note brought by the First National Bank of Colorado Springs, Colo., against John Jennings and Mary A Jennings. Judgment for plaintiff. Defendants appeal.

Campbell & McIntyre, for appellants.

J L. Williams, for appellee.

PATTISON C.

This action was begun before a justice of the peace. November 19 1885, judgment was recovered by appellee, from which an appeal was taken to the county court. January 25, 1886, the cause was tried by the court, without a jury, and judgment rendered in favor of appellee, for the sum of $170, with costs. From that judgment this appeal was taken. Upon the trial, appellee introduced in evidence a written instrument of which the following is a copy:

'$200. Colorado Springs, Colo., May 21st, 1885. On October 1st after date I promise to pay to the order of Obediah P. Hopkins $200, at the El Paso County Bank, Colorado Springs, Colorado, for value received. Negotiable and payable without defalcation or discount, with interest from June 1st, 1885, at the rate of ten per cent. per annum until paid. This note is given for part payment of rent of certain pasture fields, and is not to be paid unless I have the use of said premises, in accordance with a certain lease and agreement executed by said Hopkins and myself, of even date herewith. [Signed] JOHN JENNINGS. MARY A. JENNINGS. Indorsed: OBEDIAH HOPKINS.'

After the intorduction of this instrument appellee rested its case, and thereupon the defendants moved for a judgment of nonsuit. The motion was overruled. The ruling of the court upon this motion is the first error assigned. The grounds upon which the motion for nonsuit was based are not disclosed by the record. It appears, however, from the record that the motion was overruled after 'argument by the counsel for the respective parties.' Assuming that the reasons urged in support of the motion here were assigned by counsel in the court below, when the motion was made, the first question presented for consideration is whether the court erred in overruling the motion. The propositions discussed by appellants' counsel are: First, that the instrument was not negotiable at common law, nor assignable by indorsement, under the provisions of the statute of this state; and, second, that, the instrument being non-negotiable, it was incumbent upon the plaintiff to prove its ownership of the instrument, and that there was a consideration to sustain it. In other words, the position of appellee's counsel is that appellee should have proven that it was the equitable assignee of the instrument in question, and also that the amount named therein was actually due, because appellants had had the use of the premises as provided by the lease therein mentioned.

The first question, therefore, to be considered is whether the instrument above set forth is negotiable at common law, or under the statute of this state. The instrument is in form a promissory note, with a condition added. By the terms of the condition, the consideration of the note is declared to be 'part payment of rent of certain pasture fields,' and that it shall not be paid unless the makers have the use of the premises. This condition must be taken as a part of the note. The nature of the promise to pay must be determined by the construction of the instrument as a whole. Considered as an entirety, it is clear that appellants' liability was dependent upon a contingency. The promise was therefore conditional. It could not be enforced, unless it affirmatively appeared that the condition had been performed. The contingency was uncertain, and might never happen. At the time the instrument was made, therefore, no promise or agreement was entered into by the makers that they would pay the sum of $200 unconditionally, and in any event. That an instrument of this nature is not negotiable at common law is well settled. 1 Rand. Com. Paper, § 7; 1 Daniel, Neg. Inst. § 41.

Was this instrument negotiable under the statute of this state? Section 3 of that statute (Gen. St. c. 9) provides that 'all promissory notes, bonds, due-bills and other instruments in writing, made by any person, whereby such person promises or agrees to pay any sum of money * * * to any other person or persons, shall be taken to be due and payable to the person or persons to whom the said note, bond bill, or other instrument in writing is made.' Section 4 provides that 'any such note, bill, bond, or other instrument in writing, made payable to any person or persons shall be assignable by indorsement thereon, * * * in the same manner as bills of exchange.' These sections of the statute have been construed by this court. In Carnahan v. Pell, 4 Colo. 190, it is held that 'if an instrument, whether it calls for money or property, be not payable unconditionally, and at all events, it is not negotiable under the statute.' Eldred v. Malloy, 2 Colo. 320. The case of Kiskadden v. Allen, 7 Colo. 206, 3 P. 221, cited by appellee's counsel, does not conflict with this doctrine. The promise contained in the note sued upon in that case was not conditional. The money was to become due and payable in any event. The statute cited is a substantial transcript of that of the state of Illinois relating to the same subject. The question presented by this case has been discussed and passed upon in numerous cases in that state. In the case of Kingsbury v. Wall, 68 Ill. 311, it is held that 'it is indispensable that all bills of exchange or promissory notes, to be assignable under our statute, or at common law, must be certainly payable, and not dependent on any contingency,...