In deciding this case the Appellate Court delivered the following opinion:
“Counsel for appellant contended, arid argue with great force, that the agreements (which we shall for certainty refer to as ‘note-contracts’) held by appellant, having been purchased and not paid by Mr. Cooper, who signed them, he had a right to re-issue them, and that the re-issue thereof is valid. Whether that be so depends upon whether the instruments in question are promissory notes. Counsel concedes that they are not negotiable promissory notes, but contends that they are of the class of instruments known in our law as non-negotiable promissory notes.
“No contract or agreement is a promissory note, either negotiable or non-negotiable, which does not provide for payment absolutely and unconditionally. If payment depends upon a contingency which may never happen, it is not a promissory note. (Kelley v. Hemmingway, 13 Ill. 605; Smalley v. Edey, 15 id. 324; Baird v. Underwood, 74 id. 176; Husband v. Epling, 81 id. 172).
“We do not understand counsel for appellant to contend that a valid ‘re-issue’ can be made of contracts other than promissory notes.
“A contract for the payment of a certain sum when the payee ‘is twenty-one years old’ is not a promissory note. (Kelley v. Hemmingway, ante). ‘The fact that the payee lived until he was twenty-one years old makes no ■ difference. It was not a promissory note when made.’ A promise to pay a definite sum of money ‘on the death of a particular individual is a good promissory note, for the event on which the payment is made to depend will certainly transpire. ’ (Ibid). A contract or agreement in writing to pay a definite sum of money six months after date, ‘on condition said amount is not provided as agreed by J. U.,’ is not a promissory note. (Baird v. Underwood, ante). An agreement in writing to pay a definite sum of money ‘when the estate of the said T. M. is settled up’ is not a promissory note. (Husband v. Epling, supra). Although it may not be known in advance when the time may be, yet ‘it must be absolutely certain that it will be some time.’ (Canadian Bank v. McCrea, 106 Ill. 281).
“The note-contracts now here in question, called by the appellant promissory notes and by the appellees contracts, state that ‘on or before one year (two years in one of them) after the date of the completion of the piling and filling’ of certain premises ‘according to the requirements of a certain agreement of even date therewith, the date of said completion of piling and filling to be determined by the board of commissioners of Lincoln park and evidenced by their certificate in writing, * * * and notice in writing served on the payor, ’ for value received, the payor promises to pay to the order of Minna Allmendinger §7500. It cannot be said that it is absolutely certain that the piling and filling will ever be done, or that it will be done according to the requirements of the agreement referred to, or that the Lincoln park commissioners will ever make the certificate indicated, or that such a certificate will ever be filed with the trustee named.
“Said note-contracts being for the payment of money only upon the happening of the contingent and uncertain events mentioned, not being promissory notes, cannot be ‘re-issued’ by the maker thereof, in the sense or in the mode that a promissory note not then due may be reissued. They are payable to the order of Minna Allmendinger. It was therefore necessary that there should be a valid transfer thereof to vest the title to the same in any other person. It is not charged that she made any transfer otherwise than by simple endorsement. That was not a transfer or assignment of said agreements. (Husband v. Epling, 81 Ill. 172). There is a marked difference between assignability and negotiability. That Minna Allmendinger might have assigned said note-contracts does not change the matter. The fact is, she did not do so. A mere endorsement does not operate to transfer or assign a non-negotiable instrument. The title ,to such an instrument thus endorsed does not pass by mere delivery. Said note-contracts do not come within that class of contracts which, although not negotiable at common law, are made so by the statute of this State.
“The same contingent and uncertain events mentioned in the note-contracts, upon the happening of which, and in which case only, the money should become payable, are recited in the trust deed given to secure the payment of any money that might become due upon said note-contracts and delivered to the appellant therewith. The condition precedent to the contingent liability to pay any money upon said note-contracts is the performance on the part of said Allmendinger of the provisions of the contract mentioned in said note-contracts. That contract is not set out in the-bill of complaint filed by appellant, neither is a copy thereof attached to said bill. For aught that here appears, that contract was canceled by the parties thereto.
“No recovery.can ever be had upon said note-contracts without averring and proving that the piling and filling referred to had been completed ‘according to the requirements’ of the agreement therein mentioned. But that agreement is not before us. It is a part of the note-contracts as effectually as though written therein. The note-contracts form but a part of the written agreement between the parties. In Stacey v. Randall, 17 Ill. 467, it is sai.d that ‘where two instruments are executed as part of the same transaction and agreement, whether at the same or different times, they will be taken and construed together.’ In Gardt v. Brown, 113 Ill. 475, the late Mr. Justice Walker, speaking for the court, says: ‘No rule of interpretation is more familiar than when two instruments are executed as the evidence of one transaction they shall be read and construed as one instrument. ’ And in Wilson v. Roots, 119 Ill. 379, the court says: ‘The rule is familiar, and of frequent application in cases before this court, that where different instruments are executed as the evidence of one transaction or agreement they are to be read and construed as constituting but a single instrument. ’ That is the rule of construction very generally, if not universally, adopted by courts of justice.
“It does not appear that said piling and filling contract was ever assigned to appellant or that it ever had any interest therein. As before stated, it does not appear that that contract was ever completed or is now in existence, or that performance thereof can be enforced. If not, then no recovery can be had upon said note-contracts. It devolves upon the appellant to show affirmatively and as a part of the requisites necessary to the maintenance of its bill that it has some interest in the subject matter of this litigation, and has legal and equitable rights which it may in this proceeding protect and enforce. It has not done so, and the court below did not err in dismissing the bill of complaint for want of equity.
“As the appellant does not by its amended bill state a casé that shows a right of recovery, it is not in a position to invoke the rule of subrogation presented by counsel. It is therefore quite unnecessary to discuss that rule or cases in which it may be applied.
“The decree of the circuit court dismissing the said amended bill for want of equity is affirmed.”
We concur in the foregoing views, and in the conclusion reached. Accordingly, the judgment of the Appellate Court is affirmed.
Judgment affirmed.