By the Court,
Bailey, J.
This case comes before this • Court on a petition in error praying for? the reversal of a judgment rendered against the plaintiffs in error, and im favor of the defendants in error, in June, ,1859, by- the United States District Court for the First District of the late Territory of Kansas, sitting in the county-of Leavenworth.
The action in the Court below was brought to recover the balance due on a note, of which the following -is a copy :
“ Leavenworth City,- Kansas Territory, 1 “ $2,040. ’ May 1st, 1858.-
“ On or before the first day of October, A. D~ 1858,- we or either of us promise to pay Hoosier & Overshineiy or order, two thousand and forty dollars, for value received, payable at the banking house of J. C. Hemingray & Co., in said city and territory, negotiable and payable without defalcation or discount; provided, said sum is not in the meantime- collected [112]*112from the assets of Pemberton & Co., in the county of Christian, and State of Kentucky.
“(Signed,) W. & A. Pemberton.”
On this note was the following indorsement, made January 19th, 1859, viz.:
“ Received of W. & A. Pemberton ($1,370 89) one thousand three hundred and seventy dollars and eighty-nine cents on the within note, and if the balance due on this note 'is collected in Kentucky, this note is to be delivered up to W. & A. Pemberton.
“ Hoosier & Overshiner.”
The petition of plaintiffs below was in common form, setting forth the execution and delivery of the note by defendants to plaintiffs, with copy of the note, and of the indorsement, and concludes as follows, viz.:
“ Plaintiffs further state that no part of the balance of said debt has been paid, and that there is yet due to them on the note aforesaid the sum of seven hundred and six dollars and seventeen cents, with interest, &c., no part of which has been paid.”
To this petition the defendants demurred, and their demurrer was overruled by the Court. Whereupon, defendant excepted, and afterwards, by leave, file.d their answer, admit ■ting the execution of the note, and alleging the payment o one thousand three hundred and seventy dollars and eighty-nine cents, on the 29th of January, 1859, to have been paid uwith the express agreement, as stated in the indorsement on said note * * * *, that plaintiffs should collect the balance due on said note in Kentucky, out of the assets of Pemberton if Co, in the county of Christian, and State of Kentucky, in accordance with the stipulations contained in the body of said note.”
Defendants also aver in their answer that plaintiffs had made no effort in Kentucky “ to collect the balance of said note from the assets of Pemberton & Co., in due form of [113]*113law,” and state “ that there are in the hands of A. D. Rogers, Esq., an officer appointed by the Circuit Court for the county of Christian, in said State of Kentucky, abundant assets for the payment of the balance due on said note, and that said note, when properly presented to.- said A. D. Rogers, will be paid off.”
This answer having been filed by defendants, the Court below rendered judgment over the answer, in favor of plaintiff. Whereupon defendants’ counsel moved to set aside the-judgment and for leave to file as amended answer, on affidavit of William Pemberton filed, which affidavit sets forth—
First. u That defendants have a meritorious defense to said action.”
Second. “ That they are not lawfully liable to pay to-plaintiffs the amount in their petition claimed.”
Third. “ That this affidavit is not made for delay, but that justice may be done.”
Fourth. “ That the facts set out in the amended answer-are true.”’
The amended answer referred to in this affidavit sets forth that the defendants, with one Wm. M. Hill, co-partners asPemberton & Co., residing and transacting business in Christian county, Kentucky, had at some time, not specified, made an assignment of all their effects to one A.. D, Rogers, as-trustee for the benefit of their creditors ;■ that the plaintiffs-were creditors of said firm of Pemberton & Co., and the note-in suit was given plaintiffs to secure them against less — said note to be paid on the first day of O’cto-ber, 1858; “provided? that the sum mentioned in said note was not collected from the assets of Pemberton & Co., in the State of Kentucky, prior to the said 1st day of October, 1858; that afterwards, to wit : On the 19th of January, A. H, 1859, said note being unpaid from the assets of Pemberton & Go., plaintiffs having failed to collect tbe same from said assets, because said assets-had not been fully marshalled. Defendants paid on said note1 [114]*114the sum of one thousand three hundred and seventy dollars and eighty-nine cents, and in consideration of said payment being then and there made by defendants, plaintiffs agreed to resort to the assets of said Pemberton & Co., in the State of Kentucky, and rely first upon them, out of which to obtain payment for the balance of said note, and these defendants were not to be called upon to pay said balance until plaintiffs had exhausted their remedy against the said assets in Kentucky, which they have not done,” &c.
“ Defendants further state that there are now, and have been, sufficient assets in the hands of said trustee, Rogers, to pay said plaintiffs’ claim in full, and that said Rogers will, from said assets, fully pay off said balance when thereto properly requested, after he shall have fully marshalled the assets of said Pemberton & Co., which defendants are informed, and believe, has been already done; that defendants will ahvays be ready to pay said note when they shall be thereto liable; that they are but sureties for the payment of said balance, as is well known by said plaintiffs, and that this was the agreement between plaintiffs and defendants. Of all which defendants put themselves upon the country,” &c.
The assignment of error is as follows :
First. The Court erred in overruling the demurrer of the defendants in the Court below, who are plaintiffs here.
Second. The Court erred in overruling the motion of the plaintiffs herein, who were defendants in the Court below, and refusing to allow them to file their amended answer.
First. It is claimed that the Court below ought to have sustained the demurrer, because the note set forth in the petition, and the indorsement on said note include a condition precedent, while the petition fails to aver performance of such condition.
This position we deem untenable.
The promise to pay is in no sense conditional. The defendants promise to pay a sum certain on a day certain, pro[115]*115vided only, that it is not paid before that time. The condition is only such as the law annexes to all promises to pay, and the effect of expressing such condition is simply to charge third parties with notice.
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By the Court,
Bailey, J.
This case comes before this • Court on a petition in error praying for? the reversal of a judgment rendered against the plaintiffs in error, and im favor of the defendants in error, in June, ,1859, by- the United States District Court for the First District of the late Territory of Kansas, sitting in the county-of Leavenworth.
The action in the Court below was brought to recover the balance due on a note, of which the following -is a copy :
“ Leavenworth City,- Kansas Territory, 1 “ $2,040. ’ May 1st, 1858.-
“ On or before the first day of October, A. D~ 1858,- we or either of us promise to pay Hoosier & Overshineiy or order, two thousand and forty dollars, for value received, payable at the banking house of J. C. Hemingray & Co., in said city and territory, negotiable and payable without defalcation or discount; provided, said sum is not in the meantime- collected [112]*112from the assets of Pemberton & Co., in the county of Christian, and State of Kentucky.
“(Signed,) W. & A. Pemberton.”
On this note was the following indorsement, made January 19th, 1859, viz.:
“ Received of W. & A. Pemberton ($1,370 89) one thousand three hundred and seventy dollars and eighty-nine cents on the within note, and if the balance due on this note 'is collected in Kentucky, this note is to be delivered up to W. & A. Pemberton.
“ Hoosier & Overshiner.”
The petition of plaintiffs below was in common form, setting forth the execution and delivery of the note by defendants to plaintiffs, with copy of the note, and of the indorsement, and concludes as follows, viz.:
“ Plaintiffs further state that no part of the balance of said debt has been paid, and that there is yet due to them on the note aforesaid the sum of seven hundred and six dollars and seventeen cents, with interest, &c., no part of which has been paid.”
To this petition the defendants demurred, and their demurrer was overruled by the Court. Whereupon, defendant excepted, and afterwards, by leave, file.d their answer, admit ■ting the execution of the note, and alleging the payment o one thousand three hundred and seventy dollars and eighty-nine cents, on the 29th of January, 1859, to have been paid uwith the express agreement, as stated in the indorsement on said note * * * *, that plaintiffs should collect the balance due on said note in Kentucky, out of the assets of Pemberton if Co, in the county of Christian, and State of Kentucky, in accordance with the stipulations contained in the body of said note.”
Defendants also aver in their answer that plaintiffs had made no effort in Kentucky “ to collect the balance of said note from the assets of Pemberton & Co., in due form of [113]*113law,” and state “ that there are in the hands of A. D. Rogers, Esq., an officer appointed by the Circuit Court for the county of Christian, in said State of Kentucky, abundant assets for the payment of the balance due on said note, and that said note, when properly presented to.- said A. D. Rogers, will be paid off.”
This answer having been filed by defendants, the Court below rendered judgment over the answer, in favor of plaintiff. Whereupon defendants’ counsel moved to set aside the-judgment and for leave to file as amended answer, on affidavit of William Pemberton filed, which affidavit sets forth—
First. u That defendants have a meritorious defense to said action.”
Second. “ That they are not lawfully liable to pay to-plaintiffs the amount in their petition claimed.”
Third. “ That this affidavit is not made for delay, but that justice may be done.”
Fourth. “ That the facts set out in the amended answer-are true.”’
The amended answer referred to in this affidavit sets forth that the defendants, with one Wm. M. Hill, co-partners asPemberton & Co., residing and transacting business in Christian county, Kentucky, had at some time, not specified, made an assignment of all their effects to one A.. D, Rogers, as-trustee for the benefit of their creditors ;■ that the plaintiffs-were creditors of said firm of Pemberton & Co., and the note-in suit was given plaintiffs to secure them against less — said note to be paid on the first day of O’cto-ber, 1858; “provided? that the sum mentioned in said note was not collected from the assets of Pemberton & Co., in the State of Kentucky, prior to the said 1st day of October, 1858; that afterwards, to wit : On the 19th of January, A. H, 1859, said note being unpaid from the assets of Pemberton & Go., plaintiffs having failed to collect tbe same from said assets, because said assets-had not been fully marshalled. Defendants paid on said note1 [114]*114the sum of one thousand three hundred and seventy dollars and eighty-nine cents, and in consideration of said payment being then and there made by defendants, plaintiffs agreed to resort to the assets of said Pemberton & Co., in the State of Kentucky, and rely first upon them, out of which to obtain payment for the balance of said note, and these defendants were not to be called upon to pay said balance until plaintiffs had exhausted their remedy against the said assets in Kentucky, which they have not done,” &c.
“ Defendants further state that there are now, and have been, sufficient assets in the hands of said trustee, Rogers, to pay said plaintiffs’ claim in full, and that said Rogers will, from said assets, fully pay off said balance when thereto properly requested, after he shall have fully marshalled the assets of said Pemberton & Co., which defendants are informed, and believe, has been already done; that defendants will ahvays be ready to pay said note when they shall be thereto liable; that they are but sureties for the payment of said balance, as is well known by said plaintiffs, and that this was the agreement between plaintiffs and defendants. Of all which defendants put themselves upon the country,” &c.
The assignment of error is as follows :
First. The Court erred in overruling the demurrer of the defendants in the Court below, who are plaintiffs here.
Second. The Court erred in overruling the motion of the plaintiffs herein, who were defendants in the Court below, and refusing to allow them to file their amended answer.
First. It is claimed that the Court below ought to have sustained the demurrer, because the note set forth in the petition, and the indorsement on said note include a condition precedent, while the petition fails to aver performance of such condition.
This position we deem untenable.
The promise to pay is in no sense conditional. The defendants promise to pay a sum certain on a day certain, pro[115]*115vided only, that it is not paid before that time. The condition is only such as the law annexes to all promises to pay, and the effect of expressing such condition is simply to charge third parties with notice.
The conditional words of the note do not create or impose upon the payees any obligation to collect any sum of money from the assets mentioned, or to do any other act whatever, and the averment in the petition that “ no part of the balance of said debt has been paid, and that there is yet due te them on the_note aforesaid, the sum of seven hundred and six dollars and seventeen cents — no part of which has been paid,” are sufficient to negative the idea of payment, whether from the assets mentioned or from any other source.
The demurrer, therefore, was properly overruled.
Second. Judgment having been rendered for plaintiffs, over the answer, was the motion to set aside said judgment and for leave to file the amended answer on the affidavit of Vm. Pemberton, properly overruled ?
The defendants could only claim to file their amended answer out of time, by showing, to the satisfaction of the Court, a meritorious defense, and that he did not demur for delay. (Code, § 146.)
The affidavit filed in support of the motion contains, not a statement of facts, but of conclusions of law.
Third. The proposed amended answer does not state facts sufficient to constitute a valid defense.
The amended answer shows that on the 19th day of January, 1859, the plaintiffs had made efforts to collect the amount of the note in Kentucky, and had failed so to doj that on that day defendants paid to plaintiffs one thousand three hundred and seventy dollars and eighty-nine cents, in consideration of which payment, ' plaintiffs made a certain agreement.
But the agreement of January 19th, 1859, was in writing, and parol evidence cannot vary or contradict it, and besides, [116]*116the whole amount of said note being more than three months over due, the payment of a part of that amount cannot furnish a valid consideration for the agreement defendants attempt to set up. They did what the note bound them to do, and no more.
It is therefore ordered by the Court, that the judgment of the Court below be affirmed, and that a mandate, issue -to said Court to carry the judgment into effect. Judgment in this Court against plaintiffs in error for costs and execution thereon.