
    William J. Traver vs. Angelo D. Stevens.
    The payee of a promissory note, the consideration of which was the payee’s promise to the maker to deliver up another note he held against him, may recover thereon without proof of having surrendered tire other note.
    Assumpsit upon two promissory notes dated October 23d, 1851, payable to the plaintiff or order, made by the defendant The only defence was a failure of consideration, to prove which, the defendant produced the following receipt: “ Received, Pittsfield, October 23d, 1851, of A. D. Stevens, his notes of one hundred dollars, one dated October 23d, for twenty-five days, and one for forty-five days, (the notes in suit,) for which I am to send him his note for one hundred and sixty-nine dollars, to balance our settlement. W. J. Traver.” It did not appear that the last-mentioned note was ever sent to the defendant, and he contended that the plaintiff, therefore, could not recover. The ease was submitted to the court of common pleas, and by appeal to this court, on an agreed statement of facts.
    
      P. L. Page, for the plaintiff.
    
      J. Rockwell, for the defendant.
   Dewey, J.

The ground of want of consideration for the promise of the defendant entirely fails. The stipulation that the plaintiff would deliver up a certain other note to the defendant, is an ample consideration for the promise in the note in suit. The only ground of defence that can be plausibly urged is, that this was a conditional promise, and the condition not performed upon which it rested. But as it seems to the court, the note was given upon a good consideration and the delivery of the other note was not a condition precedent to a recovery of the note in suit. The stipulation, to send the defendant his other note, was an independent stipulation, executory in its character. The two promises were to be performed at different times, and this also shows them to have been independent promises. The case of Waterhouse v Kendall, ante, 128, seems to be directly in point.

Judgment for the plaintiff.  