Flood v. Petry , 165 Cal. 309 ( 1913 )

SHAW, J.,

concurring.—I concur in the judgment solely on the ground that the conduct of Flood in executing the note, under the circumstances stated in the opinion of Mr. Justice Melvin, and the terms of the note itself, show that it was his intention that the note was to be negotiated by Petry, if he chose, before its maturity and prior to the completion of the building contracted for, and that these facts create an estoppel against Flood which prevents him from asserting the failure of the consideration of the note against a third person who took it for value with knowledge of the fact that the consideration was the completion of the building free from liens or claims, provided, as was the fact here, the person took the note before the failure of consideration occurred. I think the building contract and the note constituted the parts of a single agreement, and that, under the terms of tb«i agreement as a whole, the consideration of the note was not the mere promise of Petry to erect the building, but the actual erection thereof free from liens or claims, and that the failure to so complete it would have been available to Flood as a defense to the note if it had remained in the hands of Petry.

Hearing in Bank denied.