
    J. M. Loren et al. v. Joseph M. Hillhouse.
    April 26, 1877, H. indorsed and transferred to L. & Oo. the promissory-note of S. & S. for the sum of $700, dated March 1, 1877, and due in six months. In consideration therefor, L. & Co. delivered to H. a piano valued at $450, and $50 in money. They also' agreed to pay H. $50 in six days and $150 when the note should he collected. One month before the note became due, L. & Oo., for a value consideration, sold and indorsed it to M. without recourse. On the nineteenth of September, 1819, H. commenced an action against L. & Oo. to recover $150 with interest from August 2, 1811. He did not aver that the note had been collected.
    
      Held: H. could maintain the action.
    Error to the District Court of Franklin County.
    In April, 1877, Hillhouse entered into an agreement with J. M. Loren & Co. by which he agreed to, and did endorse and transfer to them a promissory note made payable to him by Mary S. Spencer and I’m. H. Spencer, for the sum of seven hundred dollars. The note bore date of March 1st, 1877, and became due six months after date. In consideration for this J. M. Loren & Co. gave to Hillhouse a piano of the value of four hundred and fifty dollars and fifty'- dollars in money. They also promised to pay fifty dollars in six days, which was done, and one hundred and fifty dollars “ when the note was collected.”
    Oh the 2d day of August, 1877, and before the note became due, Loren & Co. for a valuable consideration sold, transferred and endorsed the note to J. M. Montgomery, without recourse.
    September 16, 1877, and- before the last assignee had collected the amount due upon the note from the makers, Hillhouse commenced an action against J. M. Loren & Co. to recover from them the one hundred and fifty dollars. To the petition a demurrer was filed, and overruled by the court of common pleas. The district court affirmed this judgment.
    
      Watson Burr and JRalston McNaughton, for plaintiff in error,
    claimed that the action could not be maintained, and cited 1 Wharton on Contracts, § 598; Chambers v. Jaynes, 4 Pa. St., 39; Tyng v. U. S. S. $ T. Boat Co., 1 Hun, 166; Snell v. Cheney, 88 111., 259; Torlcer v. Arnoux, 76 N. Y., 397; Wilson v. Clarh, 20 Minn., 867; Shaw v. 
      Turnpike Co., 2 Pen. & Watts (Pa.), 458; Cutler y. Powell, 5 Term, 320; 1 Story on Contracts (5th ed.), §§ 40, 47.
    
      D. K. Watson, for defendant in error,
    cited, 22 Mo., 124; 19 Wallace, 560; 24 Maine, 278.
   Nash, J.

The courts below held that Hillhouse had a right of action against J. SJ. Loren & Co. upon the 2d day of August, 1877, when for a valuable consideration and without recourse they assigned the note to J. M. Montgomery. The majority of this court approve of the conclusion reached by the common pleas and district courts.

. At the time J. M. Loren & Co. agreed with Hillhouse to receive the note and to pay him one hundred and fifty dollars, when it should be collected, they became the trustees of Hillhouse for the collection of the note and for the payment of the proceeds to him to the extent of one hundred and fifty dollars. As soon as they, for a valuable consideration, assigned the note to Montgomery, without recourse, they lost all control over it and placed it beyond their power to execute their part of the trust, to wit: to pay to Hillhouse the amount named out of the proceeds when collected. From the moment they parted with the power to perform their part of the trust thejr were liable. To hold otherwise might be a great hardship in a case that can easily be supposed. •

B. has A’s note for $5,000, due in one year. B. assigns, the note to C. upon the payment of $2,500, and C’s agreement that he will pay the remaining $2,500 when the note is collected. C. assigns the note. to D. and receives the full amount, $5,000, therefor. D. concludes that the note is a good investment, and arranges with A. that it shall not be paid when due, but extends the payment thereof for five years thereafter. If the theory of the plaintiff in error be true, B. will be kept out of the use of his $2,500, for five years, and C. will enjoy the use of twenty-five hundred dollars, which do not belong to him, for the same period.

In the absence of an averment to the contrary it is reasonable to suppose that when J. M. Loren & Co. assigned the note to Montgomery they received full value, $700, therefor. If this is so they have been paid in full for the piano, the $100 advanced has been returned, and they have one hundred and fifty dollars which do not belong to them. It would not be just to hold that they had a right to use and enjoy this money until the assignees of the note saw fit to collect it.

Judgment affirmed.

Granger, C. J., and McCauley, J.,

(dissenting). The parties expressly agreed ■ that the $150 was to be paid “when said note was collected.” To collect a note is a very different act from either a pledge or a sale of it. The contracting parties were business men, and presumably familiar with all these acts so likely to be done in connection with a note, and with the words by which each act is usually described. If Hillhouse wished to retain a right to receive the $150 in case Loren & Co. “sold,” or “realized,” on the note, he could easily have inserted the proper word, or words, if that was the real contract. Construed according to the ordinary meaning of the words, the contract meant that Hillhouse was to receive the $150 whenever the whole note was collected from the makers, or from him as indorser. If called upon to respond in that character, by Loren & Co., he could have “set off” the $150. If the whole note had been collected from him as indorser by a purchaser for value, before due, without notice, he could then have sued Loren & Co. for the $150.

The cases cited by counsel where parties were allowed to collect before the happening of the event by which the time of payment was to be determined, are cases where it was evident from the contract that actual payment was intended to be made, and the event referred to as fixing the time for payment became impossible, without the fault of the payee, or was delayed by the act or fault of the holder.

In this case the collection remained easily feasible. Judg ment was rendered against Hillhouse as indorser on March 15, 1878, only six months after the note fell due. All that Hillhouse had to do, was-to pay the judgment and at once sue Loren & Co. for the $150.. On September 5, 1877, it was his duty, under his indorsement to make full payment of the note to the then holder. If he had fulfilled his own contract he would have been then entitled to sue Loren & Co. for the $150. By the judgment here complained of, although actually in default himself, he was held entitled to sue on September 16, 1877. He so sued in September, 1879. But as the note has never been collected; as the petition does not attempt to aver that collection had become impossible without Hillhouse’s fault, we think the demurrer to the petition,should have been sustained, and that the judgments below should be reversed.  