The appellant claims that the questions upon this appeal are to be considered without reference to the facts found by the court in its "Memorandum of Decision," and for the purposes of the argument this will be conceded.
The first question is whether the court erred in sustaining the demurrer to the counterclaim, and the answer to this depends mainly upon the construction of the memorandum upon the deposit book. The entry in question is exceedingly brief and informal, but when read in the light of the circumstances under which it was made, as they appear upon the record, without reference to the "Memorandum of Decision," the purpose and intent of the parties in making it are tolerably clear. A house was being built for the Burkes upon their lot on Kimberly Avenue, and they had a deposit in the hands of the plaintiff to meet bills due and to become due on that house. Provided the money was so applied, it was a matter of indifference to them, apparently, whether it was applied by themselves or by Edwards and the bank. They desired to give Edwards power of some sort to pay these bills with this money, subject to their own right also to do so. If this could be done with safety to themselves, it would be a convenience to all concerned; but such a power, conferred upon Edwards, would leave them at his mercy, unless its exercise was so limited and conditioned as to make it certain that a payment to Edwards under the power would be equivalent to a payment upon bills due on the house. The Burkes were evidently unwilling to give Edwards absolute power over the money, else they would have given him such power. Their main purpose in making the memorandum as they did, was, manifestly, so to limit the power of Edwards over the money as to afford them protection against its use by him for purposes of his own. Under these circumstances the writing in question was made, and it gives Edwards power to draw upon the deposit for a single purpose, namely, "for the completion of the building on Kimberly Ave."
The question is whether the valid exercise of this power is conditioned upon an actual appropriation of the money drawn, *Page 572 to the payment of bills due on the Kimberly Avenue house. We think it is. By the memorandum, the Burkes, in effect, said to the bank and to Edwards: "The money on deposit may be drawn by Edwards, provided it is used to pay bills due on the house." To hold otherwise is to defeat the manifest intent of the parties in making this memorandum. Upon this construction of the memorandum Edwards had no power to give the appellant the order here in question, except in payment of a bill or bills due upon the Kimberly Avenue house. The counterclaim failed to show that the order was given for any such purpose, and was clearly demurrable on that account.
The counterclaim also failed to show any consideration for the order or its acceptance. If the order had been negotiable it might have been held to import a consideration, but it is not negotiable. It is payable out of a particular fund; it is to pay $300, or what may be due on a specified book; the amount to be paid is made to depend upon the adequacy of a specified fund; such an order is conditional, and so not negotiable. Negotiable Instruments Law, §§ 1, 3 (Public Acts of 1897, Chap. 74). We think the court did not err in sustaining the demurrer to the counterclaim.
The next question is whether it erred in compelling the appellant to interplead. The plaintiff in its complaint alleged such facts as entitled it to relief under the statute. Chap. 42 of the Public Acts of 1893. The appellant denied some of these allegations and admitted the rest. The court found that all the allegations of the complaint were true, and thus necessarily found that the denials of the answer were not true. For aught that appears upon the record this finding was made before the order to interplead was made. If this is true, then, after the demurrer to the counterclaim was sustained and the issues raised by the answer had been determined, it was clearly the duty of the court to order the appellant to interplead, and it was the duty of the appellant to do so if he still claimed the fund. The record thus fails to show that the court committed any error upon this point, and *Page 573 it should be said that this point was not pressed in argument and is not alluded to in the brief of the appellant.
There is no error.
In this opinion the other judges concurred.