#### POPE & BALLANCE v. RIGHTER-PARRY LUMBER COMPANY.

(Filed 7 May, 1913.)

Bills and Notes — Conditional—Reference to Other Papers — Nonnegotiable — Equity—Interpretation of Statutes.

Where a promissory note given for the purchase price of timber refers to a deed and recites that it is “subject to the provisions of said deed,” it is conditional in form, and being de*207pendent in its provisions upon an outside paper, it is nonnegotiable and subject to tbe equities existing between tbe original parties, in tbe bands of a purchaser. Revisal, sec. 2151,

Appeal by intervenor, J. F. Sberron, from Ferguson, J., at November Term, 1912, of HarNett.

Clifford & Townsend for flaintiffs.

Sinclair & Bye for J. F. Slierron, intervenor.

Clare, C. J.

Tbe appellant, J. E. Sberron, was permitted to intervene and assert bis title to tbe $2,000 note signed by K. L. Howard, payable 1 Januaty, 1911. There is evidence that be received it before maturity and for value. Tbe note is worded as follows:

$2,000. DuNN, N. O., 15 January, 1909.

On 1 January, 1911, I promise to pay to tbe Rigliter-Parry Lumber Company, or order, two thousand dollars ($2,000), with interest from date at 6 per cent per annum; payable at tbe First National Bank of Dunn, N. C.

This note is for part of tbe purchase price of timber conveyed to tbe undersigned by the said company by deed of even date herewith; is secured by retention of the title to said timber by said company, and subject to the provisions of said deed.

H. L. HOWARD.

Tbe jury found that tbe defendant broke bis contract with the plaintiff, who under tbe terms of tbe deed was entitled to recover damages therefor. It is admitted in tbe case agreed that such finding was unexceptionable. The court refused to charge that this note was a negotiable instrument, and therefore that James .E. Sberron was bolder in due course and held the same free from all equities.

Revisal, 2151, specifies the requirements of a negotiable instrument. The second of these requirements is that it “must contain an unconditional promise or order to pay a sum certain in money.” This note contains tbe following condition: “and subject to the provisions of said deed.” Tbe note being, therefore, conditional in form and dependent in its provisions upon *208an outside paper referred to therein, was nonnegotiable, and his Honor properly so held. There is nothing in the provisions of Revisal, 2353 or 2154, which cures this defect or renders the note negotiable, and Sherron took it subject to all equities.

No error.