The main ground of defense to the notes in suit is that the discontinuance of the two actions described in the stipulation, and the delivery of the releases therein agreed to be given, were conditions precedent to the payment of the notes. This ground cannot be maintained. The notes were, it is true, given in pursuance of the stipulation, and the agreement therein contained to discontinue the suits and deliver the releases, and constituted the consideration, in part at least, for the notes. But the perform*382anee of that agreement was not made a condition precedent. The action in the supreme court, being the only one in which the appellant was a part}', was not agreed to be discontinued until after all the notes} should have been paid, and the releases, even if delivered, were, by the terms of the stipulation, not to become operative or binding until that time. The notes were made payable absolutely at a time certain, and their payment was not made dependent upon the delivery of the releases, or any other condition. The case is one of mulual but independent promises. It appeared in evidence, and was uncontroverted, that the notes were delivered to James J. A. Brace, who held the legal title to file property involved in the litigation for the settlement of which the notes were given, the beneficial interest being in Emma B. Brace, Eliore B. Melvin, and William C. Stout, and the defendant set up in his answer that these persons were the owners of the notes. James J. A. Bruce testified that he transferred the notes to the plaintiff in payment of money which he had advanced for the purpose of carrying on the litigation in question, and that he (James) had the assent of Mrs. Brace, Miss Melvin, and Mr. Stout, to the use he made of the. notes ; that they knew all abou.t it and ratified it. There was no controversy as to these facts. The inquiries made on the trial, as to whether the defendant was an accommodation indorser, and whether the plaintiff was a bona fide holder, were quite immaterial, as no defense to the notes was disclosed. The judgment should be affirmed.
This case is reported here,, because not fully reported elsewhere.