As the answer has not been put in issue by a replication, it must be taken as evidence of what it contains; but it can only be regarded as paroi evidence of a verbal understanding which took place at the time of giving the written order, and which, it was alleged, was the' or inducement for making it. It is very questionable whether such evidence, is .admissible, after what is 'expressed in' writing by .the defendant. The rule on this subject is the same in courts of equity as at law.
But, if the evidence is admissible, it only shows that there is a condition subsequent to be performed, namely, that the should forbear prosecuting any suit or suits at‘law upon the notes. It does not necessarily avoid the contract if this • condition has not been kept. The defendant does not allege he has sustained any injury by Mildeberger’s *397ing to judgment against him, or been put to the least inconvenience. No execution appears to have been issued against either his person or property, nor has he been compelled to pay any part of the debt.
Under these circumstances, the court ought not to interfere by withholding the property from the parties complainant; since this court will frequently relieve a party from the operation of conditions subsequent or precedent, where compensation can be made in damages for the non-performance or breach—and,'by parity, where no injury has been sustained: Wallis and others, executors of Smith v. Grimes and others, 1 C. C. 89 ; Hayard v. Angell, 1 Vern. 222; Cockel v. Phipps, Dick, 391.
The next question is, whether the defendant, Bates, could revoke or countermand the order ? I am of opinion he could not. It was not a mere naked power for De Forest to receive whatever property there might be in the hands of De Lisle.— The order amounts to an equitable assignment of the property, founded upon a valuable consideration, therefore carrying with it an interest coupled with the power, and on that account not revokable. I consider one of the points raised and decided in Peyton v. Hallet, 1 Caines’ R. 364, and the principle involved in the decision of M'Mennomy and Townsend v. Perris, 3 J. R. 72, with the cases there mentioned, as perfectly decisive on the subject.
Nor is it of any avail to the defendants that Chapman obtained the property from De Lisle without showing the order in favor of the complainant, De Forest, and, in so acting, laid aside the character of his agency, which he took upon himself when he gave the receipt, and assumed that of supercargo or agent for Bates. If the latter could not lawfully revoke or countermand the first order on De Lisle, the defendant, Chapman, could not shift the agency with which he was entrusted by the same complainant,' and convert it into an agency in behalf of the defendant, Bates—more especially as there was no notice to De Forest.
Even if the defendant, Bates, had a locus penitentice, and.he chose to exercise it, then, good faith, on his part, required he *398should give immediate notice to the complainant, Be Forest, in order to allow the latter an opportunity of pursuing other meas- - , • , ° . „ „ ures tor the recovery of ins debt, if be thought proper, instead of waiting for returns from the West Indies.
I am satisfied that nothing which took place between Bates and Chapman,'-after the former gave the_order of the. 31st of January, andjthe latter accepted the agency under it, could, without the knowledge and consent of Be Forest, divest him of the rights which he then acquired; and, hence it follows, that Chapman, having received the property from Be Lisle, no matter by what means, must be considered as the agent of Be Forest, and the property itself as belonging to him.
I must, therefore, decree the proceeds in court to the complainants, to be applied as so much on account of their debts-; after deducting the costs of this suit, which are to be paid out of the fund; and under the circumstances disclosed by the answer of the defendant, Chapman, which stands uncontradicted, and from which it does not appear he has acted fraudulently or collusively, I think he is entitled to his costs, of appearing and putting in his answer—the same to be paid likewise out of the fund.