By the Court,
Nelson, Ch. J.1. I am of opinion the learned judge erred in ruling, that the defendant was not, under the circumstances, authorized to advance money for the plaintiff necessary to complete the boat, in pursuance of the contract entered into between him and the company, and to retain the amount out of any moneys that might come into his hands under the assignment of 28th May, 1835.
. The proposition assumes, that the advance may have been made in good faith and for the sole purpose of the completian, and still the defendant not entitled to credit in the settlement of accounts between him and plaintiff.
There is, therefore, no controversy as respects this part of the charge about the application of the money, in fact, toward the proper completion of the boat. That is admitted.
In reference to the contract itself, it appears that the company reserved to themselves, in express terms, the right *202to have the .price stipulated to be paid the plaintiff for building the boat first applied to the purchase of the necessary materials and in carrying on the- work until the boat was finished and put in operation, when any balance that might remain due was to be paid over. They did not choose, it seems, to trust to his individual responsibility; and hence the stipulation that no part of the price was to be paid without regard to state of the -work, till the whole was finished.
This clause explains the meaning and object of one to be found in the assignment to the defendant.
After mentioning the sums of money already advanced to the plaintiff; and to be advanced upon outstanding bills, it is added, “ There shall also be deducted from the balance due on said contract money sufficient to complete said boat according to contract.”
Now, whether this money was advanced by the company under the privilege reserved in the contract, or by the defendant, the assignee interested in its completion, was a matter of no importance to the plaintiff.
In either case the result would be the same, the balance to be paid over to the plaintiff in the end would be so much - the less. The money advanced would be so much money paid to bis use and' at, his request, agreeably to the conditions of the contract between the parties.
Besides, the defendant, as assignee and quasi owner of the contract had a perfect right, for the protection of his ' own interest as well as the interest of the assignor, to make any advances that might be proper or necessary to complete the boat, as nothing could be realized by the one or the other until it was finished. He stood in the place of Blanchard, at least to the extent of his own interest in the contract ; and was clearly justified therefore in taking any step that it would have been right and proper for Blanchard to have taken by way of performance of the contract on his part. This power was essential to the proper protection of his interest; without it the assignment might have been worthless as a security.
2. I am inclined to think that the verdict and judgment in favor of the plaintiff upon the contract against the asso*203elation, unexplained, would be conclusive upon the deféndant as respects the defence here.
The same matter was given in evidence on the part of the defence on the trial in that suit, and, whether allowed or not by the jury, must be regarded as a final disposition of it, unless the effect of the verdict be removed by the terms of the settlement to which we shall hereafter refer."
The defendant, being one of the association, must be taken as having assented to the use of this matter by way of defence in the suit against them; at all events it must be so regarded until more efficient steps are shown by him, in order to preclude the use of it on that trial; and then it would be obviously unjust to allow him the benefit of the same matter a second time.
It is said, however, that the jury on the trial against the company did not credit this item to them; in other words, did not allow it by way of defence. But that we do not know, and besides, if rejected on the merits, the verdict would be equally decisive of it.
It is further said, that setting aside the verdict and granting a new trial, with the subsequent compromise between the parties of the subject matter of that suit, placed it upon the same footing as if no trial had ever taken place.
The proposition may be true in the abstract, but is not applicable to this case, upon the peculiar circumstances attending the arrangement.
After the new trial was granted, the defendants agreed, on certain specified deductions being made, to waive the rule granting it, and to permit judgment to be entered up. In good sense, therefore, and, I think, in legal éffect, the judgment stands upon the same footing as if no new trial had been granted, with the exception of the items thus specifically deducted. Every other item or subject matter used by way of defence upon the trial remains, and should be deemed to have entered into the consideration of the jury in making up their verdict, and which the parties themselves have adopted as the basis of the settlement.
I admit this amicable adjustment of the controversy opens the verdict and judgment to explanation; they are both *204subject to be controlled by the terms and conditions of the settlement; and if it had affirmatively appeared upon this trial that the money advanced for the repair of the boat by the defendant, and which was given in evidence on the trial against the company, had been withdrawn or excluded in arranging the terms of the settlement, the defence here would have been disembarrassed of the difficulty.
But that does not appear. As the case must go down for a new trial for the reason above stated, the defendant will have an opportunity of giving this explanation if it exists. If it does not, we are of opinion the verdict and judgment will be decisive of the defence.
As this point goes to the whole of the defence, if this was a case it would be our duty to refuse a new trial, notwithstanding the error committed on the first ground stated; but as it is a bill of exceptions, we are not at liberty to disregard it. The party is only required to put upon the record so much of the evidence as may be necessary to raise a point of law; we can not say, therefore, what effect the decision may have had upon the trial.
New trial granted, costs abide event.