delivered the opinion of the court.

The defendant having employed one Charles Ferdon to build him a house, the latter gave an order on him in favor of Wm. H. Ker, for the amount of certain materials furnished, which was accepted, payable to Ker’s order, out of the second instalment to become due for the building of the house. Ker endorsed this draft to the plaintiff, the recovery of which is the object of the present suit.

The defendant pleaded that the suit was premature, that the second instalment was not yet due ; and that he accepted the order through mistake. There was judgment against him, and he appealed.

The Commercial Court, in our opinion, did not err in overruling the plea to the prematurity of the suit. The evidence shows that the second instalment, on the falling due of which the draft was to be paid, was payable by the advance of the work.

It is true the draft was not, in its form, negotiable, but the defendant by accepting it payable to the order of Ker, gave it negotiability. In negotiable instruments the plea of error or mistake, like that of absence or the failure of consideration, ls not available against an endorsee.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Commercial Court be affirmed, with costs. 3