Flood

concurring.—I concur in the judgment solely on the ground that the conduct of Flood in executing the note, under the circumstances stated in the opinion of Mr. Justice Melvin, and the terms of the note itself, show that it was his intention that the note was to be negotiated by Petry, if he chose, before its maturity and prior to the completion of the building contracted for, and that these facts create an estoppel against Flood which prevents him from asserting the failure of the consideration of the note against a third person who took it for value with knowledge of the fact that the consideration was the completion of the building free from liens or claims, provided, as was the fact here, the person took the note before the failure of consideration occurred. I think the building contract and the note constituted the parts of a single agreement, and that, under the terms of tb«i agreement as a whole, the consideration of the note was not the mere promise of Petry to erect the building, but the actual erection thereof free from liens or claims, and that the failure to so complete it would have been available to Flood as a defense to the note if it had remained in the hands of…

This is an appeal by the defendant from an order granting a motion for a new trial. The action was one for the cancellation of a certain promissory note. There were two counts in the complaint, one alleging want of consideration-and the other averring failure of consideration.

The plaintiff Philip H. Flood entered into a contract with one Joseph Petry by the terms of which the latter was to erect a building on land belonging to plaintiff for the sum of twenty-two thousand five hundred dollars. There were to be seven progress payments, according to the terms of the contract, six in cash, but the final one partly in cash and partly by a note for the principal sum of three thousand five hundred dollars, payable in eighteen months. The seventh payment was to become due when thirty-five days should have expired after the date of acceptance of the building, provided no liens nor claims against the building, lot or premises should have been filed or recorded. At the time of executing the contract, however, plaintiff signed and delivered to Petry a note which was in the following terms:

Petry borrowed two thousand dollars from the defendant corporation, gave his own notes for that…