This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
There are a number of provisions which are intended to facilitate the payment and collection of the instrument, such as powers of attorney to confess judgment, provisions for collateral security, and the like; and the question is frequently presented whether the presence of such provisions in a written contract destroys its negotiability.
A provision which is not intended to affect the amount which will eventually be due, but which is intended solely to affect the securitv for such amount, does not render the instrument non-negotiable.1
In most jurisdictions an instrument is not rendered non-negotiable by the fact that it is secured by mortgage or other similar security.2 In California, however, it has been held that such an instrument is non-negotiable.3 Where an instrument is not rendered non-negotiable by the fact that it is secured collaterally, a reference to collateral security,4 such as a mortgage,5 does not destroy negotiability. A provision that the mortgagor is to pay for the cost of furnishing an abstract of title does not render a note which is given for the mortgage debt non-negotiable.6 A provision which reserves a lien does not render the instrument non-negotiable.7
4 Springs v. Hanover National Bank, 209 N. Y. 224, 52 L. R. A. (N.S.) 241, 103 N. E. 156.
5 Section 3 of the Negotiable Instruments Law.
See also, Continental Bank & Trust Co. v. Times Publishing Co., 142 La. 209, L. R. A. 1918B, 632, 76 So. 612; Welch v. Owenby, - Okla. - , 175 Pa. 746; Coleman v. Valentin, 39 S. D. 323, 164 N. W. 67.
6 Section 6 of the Negotiable Instruments Law.
7 Klots Throwing Co. v. Manufacturers' Commercial Co., 179 Fed. 813, 103 C. C. A. 305, 30 L. R. A. (N.R.) 40.
1Lundean v. Hamilton (Ia.), 159 N. W. 163.
2 Dumas v. People's Bank, 146 Ala. 226, 40 So. 964; Cox v. Cayan, 117 Mich. 599, 72 Am. St. Rep. 585: Croft v. Buhster, 9 Wis. 503.
3 National Hardwood Co. v. Sherwood, 165 Cal. 1, 130 Pac. 881.
4 Zollman v. Jackson Trust & Savings Bank, 238 III. 290, 32 L. R. A. (N.S.) 858, 87 N. E. 297; Roblee v. Bank, 69 Neb. 180, 95 N. W. 61 [cit-inc:, Fleckner v. Bank, 21 U. S. (8 Wheat.) 338, 5 L. ed. 631; Knippel v. Chase, 7 Ia. 145; Towne v. Rice, 122 Mass. 67; Blumenthal v. Jassoy, 29 Minn. 177. 12 N. W. 517].
5 Zollman v. Jackson Trust & Savings Bank, 238 111. 290, 32 L. R. A. (N.S.) 858, 87 N. E. 297.
A provision in a note that title to the property for which it is given shall revest in the vendor if the note is not paid at maturity, destroys its negotiability.8 A provision to the effect that the title to the article for which the instrument is given shall not pass until such instrument is paid, is said not to render such instrument non-negotiable.9 On the other hand, such a provision has been held to render such contract non-negotiable,10 unless the effect of the original transaction was to pass title and the effect of such provision reserving title is to reserve it merely for security.11
A power of attorney to confess judgment is held in some jurisdictions to destroy negotiability;12 in others not to do so.13 The negotiability of the instrument has been preserved by holding the power of attorney invalid.14 The Negotiable Instruments Law provides in express terms that a power of attorney to confess judgment if the note is unpaid at maturity, does not render it non-negotiable.15 Even under such express statutory provision, however, a power to confess judgment at any time after its date, whether it is due or not, makes the date of its maturity in effect uncertain, and for that reason destroys negotiability.16
Contra, Cornish v. Woolverton. 32 Mont. 456, 108 Am. St. Rep. 598, 81 Pac 4.
6 Lundran v. Hamilton (Ia.), 159 N W. 163.
7 Dollar Savings & Trust Co. v. Crawford. 69 W. Va. 109, 33 L. R. A. (N.S.) 587. 70S. E. 1089.
8 Wright v. Taver, 73 Mich. 493, 3 L. R. A. 50, 41 X. W. 517.
9 First National Bank v. Alexander, 161 Ala. 580, 50 So. 45; Welch v. Owenby, - Okla. - , 175 Pac. 746.
l0 Worden Grocery Co. v. Blanding, 161 Mich. 254, 20 Am. & Eng. Ann. Cas. 1332, 126 X. W. 212; Fleming v. Sherwood, 24 X. D. 144, 43 L. R. A. (N.S.) 945, 139 X. W. 101.
11 Choate v. Stevens, 116 Mich. 28, 43 L. R. A. 277, 74 X. W. 289.
12 Richards v. Barlow, 140 Mass. 218, 6 X. E. 68; Conrad Seipp Brewing Co. v. McKittrick, 86 Mich. 191, 48 N. W. 1086; Sweeney v. Thickstun, 77 Pa. St. 131.
13 Tolman v. Janson. 106 la. 455, 76 N. W. 732; Oilmore v. Hirst, 56 Kan. 626, 44 Pac. 603; Osborn v. Hawley, 19 Ohio 130.
14 Tohnan v. Janson, 106 la. 455, 76 N. W. 732.
15 Section 5 of the Negotiable Instruments Law.
16 First National Bank v. Russell, 124 Tenn. 618, Ann. Cas. 1913A, 203, 139 S. W. 734; Wisconsin Yearly Meeting, etc., v. Babler, 115 Wis. 289, 91 N. W. 678.
A provision in an instrument by which parties who are entitled to demand, notice, and the like, waive such demand and notice, does not render such instrument non-negotiable.17