Merchants' Nat Bank of Chicago v. Chicago R. Equipment Co.

• Decision Date: 01 January 1885
• Citation: 25 F. 809
• Parties: MERCHANTS' NAT. BANK OF CHICAGO v. CHICAGO RAILWAY EQUIPMENT CO.
• Court: U.S. District Court — Western District of Wisconsin

25 F. 809

MERCHANTS' NAT. BANK OF CHICAGO v. CHICAGO RAILWAY EQUIPMENT CO.

United States Circuit Court, W.D. Wisconsin.

1885

Gregory & Gregory, for plaintiff.

I. C Sloan, S. U. Pinney, and Judge Clark, for defendant.

BUNN J.

This action is brought upon two instruments in writing for the payment of $5,000 each, and declared upon as negotiable promissory notes. A copy of one of the notes is as follows '$5,000.00.

CHICAGO ILL., January 20, A.D. 1884.

For value received, four months after date the Chicago Railway Equipment Company promise to pay to the order of the Northwestern Manufacturing & Car Company, of Stillwater Minnesota, five thousand dollars, at First National Bank of Chicago, Illinois, with interest thereon at the rate of -- per cent. per annum from date until paid.

'This note is one of a series of twenty-five notes of even date herewith, of the sum of five thousand dollars each, and shall become due and payable to the holder on the failure of the maker to pay the principal or interest of any one of the notes of said series; and all of said notes are given for the purchase price of two hundred and fifty railway freight cars, manufactured by the payee hereof, and sold by said payee to the maker hereof, which cars are numbered from 13,000 to 13,249, inclusive, and marked on the side thereof with the words and letters 'Blue Line C. & E.I.R.R. Co.;' and it is agreed by the maker hereof that the title to said cars shall remain in the said payee until all the notes of said series, both principal and interest, are fully paid, all of said notes being equally and ratably secured on said cars.

'GEO. B. BURROWS, Vice-President.

'E. D. BUFFINGTON, Treas.

'No. 1. H.R.M.'

Indorsed on back:

'Northwestern Mf. & Car Co.

'Per J. C. O'GORMAN, Treas.'

Indorsed on face:

'FIRST NATIONAL BANK OF CHICAGO.

'Returned. No account.'

Also:

'Protested for non-payment.

'May 23, 1884.

'E. P. RUNYON, Notary Public.'

The other note is the same in all respects except that the date is January 23d instead of January 20th.

The plaintiff having proved the execution of the said instruments by the defendant, and their indorsement to the plaintiff, and having introduced evidence showing that it purchased the same in the usual course of business before due, paying full value therefor in cash, without any notice of want or failure of consideration, rested its case; and the defendant now moves that a verdict be directed by the court for the defendant on the ground that the instruments so declared upon as promissory notes are not such, but are executory contracts mere choses in action, not negotiable by the law-merchant, in this: First, that the time of payment is uncertain, being made to depend in part upon the question whether other instrument or instruments in writing of the same series shall fall due and remain unpaid before the maturity of those sued upon; second, that the promise to pay is not absolute or unconditional, but depends upon the performance or readiness of performance on the part of the payee of the stipulation contained in the instrument in regard to the sale of the...