ROGERS v. CODY et al.

ROGERS v. CODY et al. Where the payment of a promissory note is by agreement of parties made conditional upon the payment, by the payee, of a certain debt of the payor, such payment is a condition precedent to plaintiff's right to recover on the note, and must be averred in the complaint to have been made. Appeal from the District Court of the Fourteenth Judicial District, County of Nevada. This is an action to recover a sum due on two promissory notes; the plaintiff sets out the notes, and also sets out an agreement entered into with defendants, in which it is stated that the notes were given in payment of a certain saloon; that there were debts against the premises sold, to the amount of fifteen hundred dollars, which plaintiff agreed to pay and discharge, and it was stipulated that the notes were to be deposited with a third party, as security for the performance of plaintiff’s agreement, and upon such performance he should be entitled to their possession. The complaint does not allege payment by plaintiff, of the fifteen hundred dollars. Defendants demurred to the complaint. The demurrer was overruled, and no answer being filed, judgment was entered against defendants, from which they appealed. McFarland & Niles for Appellants. Henry Meredith for Despondent. [MAJORITY — Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring.] Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring. The payment of the indebtedness of the saloon was a Condition precedent to plaintiff’s right to recover on the notes, and as the complaint does not aver payment, the demurrer should have been sustained. Judgment reversed, and cause remanded.