Boas v. Knewing

MELVIN, J.

The plaintiff appeals from the judgment on the judgment-roll,

The suit was by J. Boas upon three certain promissory notes made payable to H. 0. Harrison Company. Each of these notes was dated August 30, 1913, and bore interest at the rate of six per cent per annum. The first one, which was for the principal sum of five hundred dollars, was payable one month after date; the second, for five hundred dollars, payable two months after date; and the third, for one thousand dollars, payable four months after date.

The defendant pleaded that the notes were of a series of four given for the purchase at a conditional sale of an automobile for the price of two thousand five hundred dollars in accordance with a certain written agreement which was pleaded, and it was alleged that following the terms of said contract the

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defendant had restored the property and that the consideration for the notes had' thus ceased to have any existence.

The facts as disclosed by the findings are as follows: By the written agreement of even date with the three notes pleaded and a fourth for five hundred dollars and interest payable five months after date, defendant promised to pay to the order of H. 0. Harrison Company the sums represented by said notes. The contract recites that the notes are given upon the consideration that the Harrison Company has promised upon payment thereof, principal and interest at maturity (time being of the essence of the contract), to sell and transfer to F. T. Knowing a certain described automobile which was on the day of the execution of the contract and notes “entrusted to the care” of said Knowing. It is admitted and agreed by the terms of the contract that the said property so entrusted is the property of H. 0. Harrison Company, to remain “in them until, they shall make the aforesaid sale and transfer” after payment of the principal and interest of the notes. By this instrument Knowing agrees to return the automobile to H. 0. Harrison Company in good order, “in case any or all of the above-mentioned notes remain unpaid at maturity.”

On September 4,1913, the plaintiff discounted the four notes and they with the contract were duly indorsed and assigned to him. At the time of the filing of this suit (January 3, 1914) the date of maturity of the fourth note had not arrived.