1. We think the facts set out in the bill of exceptions sufficiently show, that the action of assumpsit could properly be maintained against the plaintiff in error. He was required by the deed of trust, upon a sale of the land, to demand one third of the price in cash, and to take notes due in annual instalments for the residue. Having disregarded its terms, he received notes for the entire purchase money, which notes he has since exchanged for others, the last falling due some six years after the period fixed by the deed for the expiration of the credit. Having also settled up with all the other creditors, (eighteen in number,) he executed to Stringfellow, the defendant in error, and who is the only remaining cestui que trust in the deed, a written memorandum, stating that there was due to him nine hundred and three dollars and twenty-seven cents, from the firm executing the deed, the calculation of the amount being made to the 1st July, 1846.
As the trustee elected to receive notes in lieu of money, in violation of the stipulations of the deed, he should not be allowed, after the time of credit prescribed by the deed had expired, to say he has no funds for the satisfaction of the demands he undertook to pay. The cases of Hitchcock v. Lukens, 8 Porter, 333, and Huckaby v. May, 14 Ala. 263, are authorities to show that he is liable on upon the common counts. See also, Stewart v. Conner, 9 Ala. 803, and Strickland v. Burns, 14 Ib. 515.
*3272. There was no error in excluding the receipts of payments made by Hughes to the defendant in error previous to the execution of the memorandum evidencing the amount due the 6th July, 1846. This memorandum is presumptive evidence that the previous receipts were embraced in the settlement, and no proposition was made to connect the receipts with other evidence, showing a mistake in the settlement. The rule is, that when evidence which is' prima facie irrelevant, is offered, the party seeking the benefit of it must propose it in connection with other proof,' which, if allowed, would render its'rejection improper. Mardis v. Shackleford, 4 Ala. 501.
3. The view we have taken of the liability of the defendant below, disposes of the question made by the charges he asked, involving the statute of frauds. His undertaking was not to answer for the debt or default of another; but to discharge a debt out of funds placed in his hands for that purpose by the debtor. The creditor having assented to this provision for his payment, and the fund being ample for that purpose, the law raises an implied promise on the part .of the trustee, to pay over the fund, and a fortiori would sustain an express undertaking to do so. We agree with the court below, that the charges in respect to the sufficiency of the consideration, when construed in reference to the proof were abstract.
Had the plaintiff below counted also on the written memorandum, -then, in the absence of proof of a consideration, so as to enable him to recover under the common counts, he must have failed, as the writing itself does not amount to an undertaking on the part of Hughes to pay the amount expressed in it: but he does not so count, and the writing is introduced as evidence under the common counts, of the amount remaining unpaid, as ascertained upon a calculation ,• this, taken in connection with the other proof, clearly entitled the party to his remedy. Our conclusion is, that the court properly stated the law to the jury, and the judgment is consequently affirmed.