New York Bronze Powder Company, Inc. v. Benjamin Acquisition Corp.

New York Bronze Powder Company (plaintiff) agreed to sell assets to Benjamin Acquisition Corp. (defendant) for $4.5 million, later amending the deal to defer part of the price pending an audit at Benjamin's expense, memorialized in a $350,000 nonnegotiable note requiring New York Bronze to surrender the note "in order to receive payment." Benjamin never had the audit performed and made no payments; at trial, New York Bronze was uncertain of the note's exact location but believed it was held by its lender along with other transaction documents. The trial court ruled for New York Bronze, but the intermediate appellate court reversed, holding the surrender requirement was an express condition precedent to Benjamin's payment obligation, and New York Bronze appealed further.