The opinion of the Court was delivered by
Kennedy, J.There is nothing in the 1st bill of exception; It amounts at most only to an objection to the order in which the plaintiff below was proceeding to give evidence in support of his claim; for if he failed, after proving by Mengel that Robinson had made a contract on behalf of the plaintiffs in error to pay the money claimed in this action to Peter Smith, the plaintiff below, to show that Robinson had authority from them to make such contract, the evidence of Mengel could not avail the defendant in error, nor, prejudice the plaintiffs in error; and the court would have been bound so to have directed the jury.
The 2d and 3d bills of exception, however, are very material, and raise the question, was Peter Smith, the nominal plaintiff at least on record, a competent witness to establish or to support the *325action 1 On the very eve of commencing this action, the 22d of September 1840, the "writ being sued out in the course of a day or two following, Peter Smith, made an assignment of his claim against the plaintiffs in error to his son-in-law, Jacob Johnson, for whose use this action is brought, who gave him his note for the amount, which Peter Smith assigned to one of his sons, and still remains unpaid. It is impossible tp avoid coming to the conclusion that the assignment-by Smith to Johnson was made for the special purpose of rendering Smith a.-competent witness to support the claim and insure the recovery of it. This, of itself, according to the decision of this court in Patterson’s Executors v. Reed, is sufficient to prevent. Smith’s being made a competent witness, by the assignment, to support the claim. But it appears that he is incompetent upon another ground, which is, that he has made himself liable to Johnson, notwithstanding the guarded manner in which the assignment is drawn, to repay whatever he has or may recover from Johnson in consideration of the assignment, if Johnson shall fail to recover from the plaintiffs in error by reason of their never having become or rendered themselves liable to pay Peter Smith. The assignment, though it provides that “ It is fully understood and agreed between the said Peter Smith and the said Jacob Johnson, Jun., that the said Johnson, Jun. takes the assignment and transfer at his own risk, and that the said Peter Smith does not in any manner become responsible for the same, or any part thereof," in case the said money is not recovered from said M’Hvain & Smith, or from the said Philadelphia and Reading Rail-road Co.,” yet this provision will not protect Peter Smith from liability to make good to Johnson any loss which he shall sustain, if a recovery against the plaintiffs in error be defeated on the ground that they never promised or became liable to pay the claim assigned. If, however, Johnson should fail to recover it merely on account of their inability to pay, then Peter Smith, by means of the clause recited, would be protected from all liability to Johnson on that account. But, having induced Johnson to believe by "his statement, as it must be taken, that the plaintiffs in error had promised and become liable to pay the claim, and therefore to accept of the assignment of it, and to give his note for the amount, when in fact the plaintiffs in error never had made themselves liable in any way whatever to pay it, he will not be allowed, under that or any other stipulation contained in the assignment, to protect himself from any falsity or fraud practised for the purpose of inducing Johnson to take the assignment and give his note for the amount of the claim assigned. Smith has stated in his assignment to Johnson that the plaintiffs in error had promised to pay and were liable to pay it, which statement could only have been made with a view, or at least was calculated to induce Johnson to accept of the assignment on the terms proposed; and to hold, by the tenor of the assignment, that *326Smith was not to be liable to Johnson for the falsity of such state-* ment, if it be false, would be giving to the assignment a construction that would protect Smith in having committted a gross fraud by means of a wilful falsehood, which cannot be tolerated or sanctioned. To do so, would be contrary to good morals as well as sound policy.
The 4th bill of exception was to the admission of a paper, signed by MTlvain & Smith, drawn in the following terms, to wit:
“ Mr Wirt Robinson :
“ Sir—We owe Peter Smith the sum of $3454.22, it being for powder furnished us by the said Peter Smith. You will please accept the above, and oblige yours,
MTlvain & Smith.
Flat Rock Tunnel, August 15, 1840.”
This paper was not admissible as evidence tending in any degree to show that the plaintiffs in error had made themselves liable to Peter Smith to pay him moneys owing to him by MTlvain & Smith,- and consequently not pertinent to the issue trying. It cannot be considered as a bill of exchange or order drawn on the plaintiffs in error by MTlvain & Smith. It is not only wanting in terms to give it that import, but it is not -drawn upon or addressed to them or their agent, but to “ Mr Wirt Robinson” in his individual character. But had it been drawn in proper form and addressed to Mr Robinson as the agent of the plaintiffs in error, it was not shown by any evidence whatever that he had been invested by them to accept bills or orders drawn upon them, so as to create new liabilities: on the contrary, so far as any evidence was given relating to the matter, it tended to prove that the plaintiffs in error were opposed to the acceptance of orders, or anything of the sort, drawn upon them by their contractors. Hence the acceptance of it would not have been binding on them, so as to render it admissible evidence for that purpose. No doubt it was wise in the plaintiffs in error not to give such authority; otherwise, if unable to pay at any time when called on, they might, by reason thereof, have been subjected to the expenses and costs of fifty or more suits, instead of one, upon the acceptance of as many orders drawn in favour of different persons by the same contractor. An authority, therefore, which might happen to be attended with such injurious consequences to those granting it, ought to be shown clearly to have been given, and not inferred from doubtful or equivocal testimony.
The 5th bill of exception is to the admission of John R. MTlvain as a witness on behalf of the plaintiff below. He was united with Joseph W, Smith in the contract made with the plaintiffs in error for constructing the tunnel and doing all the other work requisite to be done on the 82d section of the Philadelphia and Reading Rail-road, and had become jointly indebted with Joseph W. Smith *327to Peter Smith for powder sold to them while engaged in constructing' the tunnel; and the debt thus contracted by John R. M’llvain and Joseph W. Smith with Peter Smith for the powder, is the same that Peter Smith is trying to recover in this action, for the use of Jacob Johnson, as it is alleged. M’llvain was objected to as incompetent on the ground of interest. That he had been interested as a joint debtor with Joseph W. Smith to Peter Smith, the plaintiff on record below in this action, for the price of the powder which is claimed to be recovered of the plaintiffs in error, instead of M’llvain & Smith, was not,denied, but seemed to be admitted, and, therefore, unless removed, would render him incompetent. But, to remove it, a release, executed by Jacob Johnson, Jun., for whose use this suit is stated to be brought, was produced and shown to the court below, whereupon they admitted Mr M’llvain'to testify. The release is quite formally drawn; but then all the actions, causes of action and claims of every description therein enumerated and released, appear to be such only as existed against Mr M’llvain' alone. The claim sued for here is not specifically mentioned in the release; nor is the name of Joseph W. Smith, or the names of M’llvain ><& Smith, as partners or as a firm, mentioned therein. In short, there ¡appears to be no reference to it whatever, so that if it had been intended not to release Mr M’llvain from the interest which he had on account of his joint liability with J. W. Smith to pay it, and for aught that appears to the contrary must still have, more care or caution could not have .been used for that purpose.
The 6th bill of exception was to the admission of verbal evidence to prove the contents of a final estimate made in writing by the engineer of the plaintiffs in error, whose business it was to make it, of the value of the work done by M’llvain & Smith in constructing the 82d section of the road, which M’llvain testified was shown to him by Robinson,.as the engineer and agent of the plaintiffs in error, without having given any previous notice to the plaintiffs in error to produce it on the trial of the cause. It must be observed that Mr Robinson, who was examined as a witness for the plaintiffs in error, testified that he never made such final estimate as that which was offered to .be established by the evidence objected to; so that, if such previous notice had been given, it would not have enabled the plaintiffs in error to have produced it in order that it might speak for itself, seeing they denied and gave evidence showing that it never existed. I am therefore rather inclined to think that no error was committed by receiving the evidence for the purpose offered, as it would seem to be the only evidence that the plaintiff below could have obtained of the fact, even if he had given the notice required by the plaintiffs in error.
A number of exceptions have been taken and assigned for error to the charge delivered by the court to the jury, and to answers also given by the court to points submitted by the counsel below *328for the plaintiffs in error. It is, however, unnecessary to notice them in detail, as they relate principally, if not entirely, to the view which the court took of the evidence given on the part of the plaintiff below in their instruction to the jury, and in telling them, in short, if they believed it, they would be justified in finding a verdict for the plaintiff; and we are of opinion that neither his declaration filed in the case, nor the evidence given by him on the trial of it, presents such a cause of action as entitles him to a recovery of his claim. The cause of action set forth in the decía* ration is in substance, and nothing more than, that the plaintiffs in error promised Peter Smith, the defendant in error, to pay him whatever balance was owing by them to M’llvain & Smith for their work done on the rail-road, towards paying a debt of $4000 which he said was owing to him by M’llvain & Smith, if M’llvain & Smith would consent to it, which they afterwards did. It is very clear, if such a promise as this were made, that no consideration whatever passed between the plaintiffs in error and the defendant in error for it. The plaintiffs in error did not receive, nor were they to receive anything for it; and it is equally clear that Peter Smith, the defendant in error, gave up or parted with no right which he possessed to induce such promise, or as a consideration for it, such as by forbearing to sue M’llvain & Smith for the debt owing by them to him, or by releasing them from it. The promise of the plaintiffs in error, if made at all as stated by the plaintiff in his declaration, was purely collateral, without the shadow of consideration, and therefore void.
And as to the. evidence given by the plaintiff in support of his claim, it appears to be as deficient in showing any consideration that would entitle him to recover it in this action, upon any declaration that he could draw, as the one filed. In truth, the evidence is totally deficient in showing that any promise was ever made by the plaintiffs in error to pay the debt, or any part thereof, owing by MT1 vain & Smith to Peter Smith, the plaintiff below. Anything that ever passed on the subject was with Wirt Robinson, the engineer of the plaintiffs in error, who has not been shown to have had any authority from them to make such promise on their behalf as is alleged to have been made by them. But, without authority from them to make such promise, it is clear that, if he ever did make it, it could not be considered their promise, nor binding upon them.
Judgment reversed.