Moody v. Leavitt

2 N.H. 171

• Court: Superior Court of New Hampshire
• Decided: February 15, 1820
• Status: Published

Opinion

Green, J.,

delivered the opinion of the court.

It is contended on the part of the defendant that the note in question was not for the payment of money absolutely, but payable on a contingency, and therefore not transferable by endorsement.

This objection would deserve serious consideration, had the note with the agreement, at the time of the contract, passed into the hands of Fogg ; it is by no means clear, that Fogg would, in that case, have been at liberty to separate the note from the agreement; but on this we give no opinion, the facts presenting a very different case. In this case the note and agreement were lodged in the hands of a third person, and taking into view that the agreement was not incorporated with the note, and considering the language of the memorandum made by the person with whom they were deposited, and the object they must have had in view in making the contract; we are well satisfied that it was the intention of the parties that the note should he separated from the agreement, in case Leavitt did not comply with the engagement on his part, and that it should be delivered Fogg as evidence of an absolute promise, to indemnify him for the amount advanced as the purchase sum for the land. The contingency then had relation, not to the performance of any contract, of which the note was evidence, but to the note becoming evidence of a contract to pay; if Leavitt performed his stipulations, it was not to be his note, otherwise it was to be delivered Fogg as evidence of an absolute promise to pay. If this was not the understanding of the parties, it is not easy to comprehend the reason why the papers were lodged in the hands of a third person. This note then stands on the same footing it would have done, if it had been made on the 10th of March, 1819, in pursuance of a contract between the parties made on the 16th of September, 1818, in which Leavitt had agreed to perfect the title to the land by the 10th of March, or give a negotiable note for the consideration he had received, and interest. This objection Of course cannot avail the defendant.

It is also contended on the part of the defendant, that the note was given without consideration, the covenants in the deed not having been released.

On the delivery of the deed to Fogg, the covenants of seisin were broken, the grantor having no right to convey.

At the time of giving the note in question the defect in the title had been discovered by Fogg, and the obvious construction of the agreement between the parties is, that Leavitt should have till the 10th of March, 1819, to procure and make a good title to Fogg, and if he made such title by the time stipulated, it should be satisfaction for the breach of the covenants, and in case he did not, then the note was to be delivered Fogg in satisfaction of such breach. The note is for the precise sum paid by Fogg for the land, and would have been the measure of damages in an action on the covenants, and it is difficult to see what advantage to the defendant would be derived from defeating a recovery in this suit. There is no doubt that accepting the note in satisfaction, would be a bar to any future action on the covenants. Under this view of the agreement, there was a sufficient consideration for the note; this objection, therefore, does not prevail. 3 East 259, Drake vs. Mitchel.— 2 D. & E. 479, Foster vs. Allanson.—Ditto 483, Moravin vs. Levy.

Judgment on the verdict.