Fletcher v. Thompson , 55 N.H. 308 ( 1875 )

It appears to me that the alleged note was not a negotiable promissory note. It was rather in the nature of an agreement for the use of real estate. It contains the defendant's promise to pay, in one year from date, for the rent of five rooms, and then contains a statement of matters which Fletcher is to perform. The payment of the note depended on the contingency of the defendant's being permitted by the plaintiff to occupy the five rooms, and if she had been evicted by paramount title, or been in any other way, by the fault of the plaintiff, prevented from occupying the rooms during the year, that would have furnished a defence, either wholly or partially, as the case might be. The note, therefore, being dependent upon a contingency, was not negotiable, and therefore was not entitled to grace.

SMITH, J. The construction to be given to this instrument seems to be this: It is an agreement by the defendant to pay twenty-five dollars at the end of one year, to the order of Henry Fletcher, provided he would build a barnyard fence, and permit the defendant to occupy five rooms and all the land back of the house for the term of one year from the date of the agreement. If the defendant had been interrupted in the possession of the premises by the plaintiff, that would constitute a defence pro tanto to this action. This instrument is not a note payable at all events, but only upon condition that the defendant is permitted to occupy the premises: it is not therefore negotiable, nor entitled to grace. Cutter v. Powell, 6 T. R. 320 (2 Sm. Leading Cases 1), seems to be a case directly in point; — see, also, Clark v. Percival, 2 B. A. 660, and Scammon v. Scammon,28 N.H. 419. The exceptions must be overruled, and there must be

Judgment on the verdict.