The opinion of the Court, was delivered by
Lewis, J.The proper construction of the instrument of writing upon which this action was brought, is that it was an assignment by Todd to Hunt of the claims therein named, at a discount, with a condition to return so much of the money received as remained unpaid by the persons indebted at the expiration of thirty days. In cases where a plaintiff’s right of action is grounded upon a negative allegation, the proof of this negative is an essential element of his case: 1 Greenleaf’s Evidence, sec. 78; 7 Moore 158, Calder v. Rutherford. In this case the plaintiff claimed to recover §149.73, part of the money paid for the claims stated in the instrument of writing; but his title to recover the whole sum of §640,42, was as clear as his right to recover the sum claimed, and this he could not do without proof of a failure of consideration. He paid the money in consideration of the assignment of claims against others, coupled with a contract, in the nature of a guarantee, that the claims would be paid within thirty days. He cannot sustain an action against the assignor without proof of a total or partial failure of the consideration. The difficulties supposed to exist in making this proof are more imaginary than real. If the alleged debtors are shown to be worthless, or beyond sea, or not in fact indebted to the defendant, these circumstances, or either of them, would raise a presumption that the claims against them had not *318been paid. But no proof whatever was given of a failure of consideration ; and to allow a recovery without it would amount to an unjustifiable rescission of the contract. The Court below committed no error in entering a judgment of nonsuit.
Judgment affirmed.