White v.

Cushing
88Me 339, Jan. 13, 1896 required in the order. There was an evidence showing that
plaintiff White knew about this payment refusal by the bank.
FACTS:

1.) Plaintiff John White sues as an indorsee of an order signed by

the defendant John Cushing.
6.) The order was indorsed in blank on the back by payee James
2.) The order had the following tenor: Lawler and Samuel Lewis, and plaintiff White claimed to recover
against defendant Cushing as upon a negotiable instrument.
"$120. Dover, Oct. 27th, 1893.

Piscataquis Savings Bank. 7.) Defendant Cushing asked the court to rule that the order was not
negotiable and that an action could not be maintained in the
"Pay James Lawler, or order, one hundred and twenty dollars, and charge to
my account on book No.- name of White, but the presiding justice ruled that order was
J. N. Cushing.”
negotiable.
" Witness-
"The bank book of the depositor must accompany this order.”

3.) In the said order, below the name/signature of the drawer,
defendant Cushing, it was written that “the bank book of the
depositor (Cushing) must accompany this order”.
ISSUE/RATIO:
Whether or not the instrument declared on is negotiable so that an
action may be maintained upon it in the name of the indorsee.

NO.
4.) Plaintiff White bought the order of James Lawler, the payee, on
or before the November 21, 1893. (Note that previously, the
To be negotiable they must be payable absolutely and without any
consideration for the order was for dry goods sold by payee
conditions or contingencies to embarrass their circulation. 
Lawler to Cushing.)

In this case the words, "“the bank book of the depositor must accompany
5.) Before the order was negotiated by Lawler to anybody, Lawler
this order”, were held to render the promise conditional and not absolute,
took the order to the drawer’s bank (Piscataquis Savings Bank)
and so the order was held not to be negotiable. Thus, no suit can be
and demanded payment of the same. The bank refused to pay
maintained upon it by the plaintiff as an indorsee.
until after 30 days that the notice had been given and unless it
was accompanied by the bank book of the depositor, Cushing, as
To be within the rule that prevents negotiability, the contingency or
conditions must be such as will embarrass the paper in its course of
circulation ; but a memorandum which is merely directory or
collateral will not affect it.

[ It cannot, therefore, be regarded as payable absolutely and without

any
contingency that would embarrass its circulation. The drawer has it in
his power to defeat its payment by withholding the bank book. ]