The opinion of the Court was delivered by
Knox, J.On the 9th of March, 1850, Raimond placed in the hands of Drexel & Co. C. L. Jones’ draft for $150, payable at Lewistown in 15 days, for collection, subject to a charge of •- per cent. This action is brought to enforce the agreement, and the breach laid in the declaration is in not collecting and paying the amount of said draft.
The only question which is raised upon the record before us is this. Can the action be sustained without a previous demand? The District Court gave a.n affirmative answer to this inquiry, and in doing so were clearly right.
If the amount of the draft was lost by the negligence of the plaintiffs in error, they were liable on their contract, and the institution o'f the suit was the only demand that was necessary. If the money was actually received by them, it was their duty to give notice to their principal that it was subject to his disposal; failing in this, they cannot protect themselves against an action by alleging that no demand was made for the money before the suit was brought. The defence is equally unavailing, whether the cause of action was negligence in collecting or in paying. Where an agent receives money and gives due notice to the principal, ho *24cannot be sued without a previous demand as he is in no default; but if no notice is given, an action lies without demand.
Judgment affirmed.