The action is brought upon two promissory notes. The answer avers that the consideration of the notes was certain railroad bonds which were transferred by the plaintiff to the defendant; that the plaintiff made certain false and fraudulent affirmations that they were to be indorsed by the Pennsylvania Central Railroad Company; and that they were not so indorsed. The defendant was permitted to offer proof in support of this defence, and no question is raised respecting it. The defence was not sustained by the evidence.
The answer further averred that the sale of the bonds by the plaintiff to the defendant was conditional, the condition being that the plaintiff would cause the bonds to be indorsed by the Pennsylvania Central Railroad Company, which condition has not been fulfilled ; and that without such indorsement the bonds are worthless, or nearly so. Evidence offered in support of this answer was rejected, and the defendant excepts to this ruling. The eases of Waterhouse v. Kendall, 11 Cush. 128, and Traver v. Stevens, 11 Cush. 167, are cited in support of this ruling, and they sustain it. The notes and the agreement are independent contracts, and therefore the action can be maintained on the notes, though the agreement respecting the indorsement of the bonds has not been pérformed. See also Tower v. Richardson, 6 Allen, 351, and cases there cited. Exceptions overruled.