Ezekiel Waterhouse vs. William B. Kendall, 11 Cush. 128

Shaw, C. J. The defendant alleges that he ought not to be bound on the note, as he may still be liable on the execution. It may be admitted that the plaintiff could not give a legal discharge of the latter, but on the facts he is to be' considered as the attorney irrevocable of Fletcher and Whipple, who would be bound by his acts as assignee with a power of attorney coupled with an interest. But besides this, there is another consideration. This is a note unlimited in its terms for $105.37, payable to the plaintiff, or the same thing. Can the defendant set up the receipt in defence? What is the undertaking ?

That Springer will procure and deliver up the execution. That is a good consideration for the note. Is it a condition precedent to a recovery upon it? We think not. Here was one undertaking to pay money, another to deliver up the execution. Neither was precedent to the other. The stipulation to procure and deliver up the execution on receiving the note, is a mutual and independent stipulation, executory in its character, a failure to perform which gives a good ground of action against the party undertaking it. Suppose the defendant were sued on the judgment, and these facts could not be proved in defence.

Then the other party would be responsible on the undertaking to procure and deliver up the execution, which is, in effect, a contract to indemnify. The contracts were to be fulfilled at different times, and were’ independent, though mutual. Exceptions overruled.