FROM MOORE. On the trial before STRANGE, J., upon the general issue, the case was that the defendant promised the plaintiff to pay him the amount of a debt due him by one Rigan, if the plaintiff would give him, Rigan, some time, as soon as the defendant should collect certain notes, which had been put into his hands by Rigan, and which the defendant represented to be good. Twenty-one months had elapsed between the promise and the commencement of this action.
The plaintiff contended that he had a right to recover without proving the collection of the money, and that the burthen of disproving collection lay upon the defendant. But his honor instructed the (230) jury that, by the contract, the collection of the notes was a condition precedent to the liability of the defendant, and unless there was direct or circumstantial evidence to satisfy them that the defendant had collected the notes they ought to return a verdict for him. His Honor left the jury to presume a receipt of the money due on the notes by the defendant from the time which had elapsed since the making of the promise. *Page 146
A verdict was returned for the defendant, and the plaintiff appealed. It is objected to the charge of the Judge below that he erred in considering the collection of the money by the defendant a condition precedent, because, since Worth himself was to do the (232) act, it would render the promise nugatory, or leave it altogether to his will, which is the same thing. Technically speaking, it is certainly not generally true that an act, to be previously done by the party promising, is a strict condition precedent to another act to be done by the same party. It is consequently here insisted by the plaintiff that this promise must be held to include an engagement on the part of the defendant, that he would endeavor to collect. It is unnecessary to consider that point very attentively. For admit the position to be fully true, the inquiry remains, what would be the proper remedy upon such a promise expressly made? The remedy must be the same on this, considering it constructively a promise of that nature. It is clear that it could be only an action on the special agreement for not collecting or using diligence to collect. Now the Judge, in trying this appeal from a justice of the peace, must consider it as if it were still pending before the justice, and decide it by the same principles which properly pertained to it when pending there. Of such a question a justice of the peace has no jurisdiction. It sounds in damages; it does not rest upon a promise to pay. Cases have been cited, however, in which actions have been sustained by principles against their agents for money had and received, without proving the actual receipt of the money, upon the presumption, from lapse of time or other circumstances, that they have received it, or that they might have received it but for their negligence. The Court left the effects of the time to the jury as evidence of the collection. And as to the other matter, that the defendant is chargeable as having received the money, because he neglected to receive it, it may be so held by a tribunal competent to weigh and appreciate the duty of diligence and the penalties of laches. That is a power not confined to justices of the peace, as was held by this Court in S. v. Alexander, (233) 11 N.C. 182; and this decision has been followed up by several others, in affirmance of the positions there taken. In effect, therefore, the charge is substantially correct. For in this method of proceeding nothing but the actual receipt of the money would sustain the plaintiff; and therefore the collection was a condition precedent — if not to any remedy of the plaintiff, to bringing this suit.
PER CURIAM. No Error.
Cited: Clark v. Dupree, post, 412. *Page 147