On Rehearing.
Todd, J.Since the rehearing was granted in this case we have reexamined with the greatest care and patience all the questions of law and fact presented by the record, which have been so ably and elaborately discussed by the learned counsel for the respective parties.
The result of this revision, even conceding that the errors of fact suggested by defendant’s counsel in oru’ previous opinion are correctly charged, has been to confirm us in the conclusions announced in that opinion as to the liability of the defendants to plaintiffs, to the extent at least of the ninety-three hogsheads of sugar received by them from Aciden.
There is no doubt in our minds from the plain text of the letter of the 3d of October, 1877, so often referred to, and the basis of the defendants’ obligation, and from the circumstances under which it was written, that it was the true intent and understanding of the parties that defendants were to pay the amounts stipulated therein to the plaintiffs upon being placed in funds by means of the contemplated shipments, to the extent specified; and that the sugar so consigned, whether one hogshead or one hundred, was to enure to the benéfit of the plaintiffs, and to furnish funds to pay them in the relative proportion of the entire amount promised to each consignment, or its proceeds. The stipulation of defendants in plaintiffs’ favor in this letter should be viewed without reference to the condition of accounts between defendants and Aciden at the date of the letter, and, in fact, without taking into consideration the indebtedness of Acklnn to the defendants; and the matter should be treated, so far as plaintiffs were concerned, as if Aciden did not owe the defendants at the time any *698amount whatever — for in our view the indebtedness of Acklen to the defendants at the time constitutes no factor' for determining the question of their liability under their engagement. The plaintiffs were strangers to the condition of affairs between them, or to be so presumed ; and the only thing we have to deal with in determining their rights is the written promise in their favor, and whether or not the condition or the consideration of that promise was fulfilled. The condition expressed in the writing formed, in our opinion, the sole consideration for the payments promised, or the only one entitled to be considered; and the pertinent inquiry is, was that condition complied with, and if so, to what extent.
Were it necessary to look further for a consideration, it could be found-in the fact that plaintiffs were the creditors at the time of Ack-len, and so acknowledged by the defendants, and whether privileged creditors or not is immaterial. That upon receiving this promise, looking to the payment of their debt, they rested content, and took no step to collect or otherwise secure it, although at that time, so far as the evidence shows, there were no recorded privileges or pledges on or against his crop in favor of defendants or any one else.
We are thoroughly satisfied that from no standpoint from which it can be viewed could the contract or engagement be considered as a rmdwrn pactmi; and at the same time convinced that it was not of that class of contracts cited by defendants’ counsel, containing an indivisible condition and dependent upon the happenings or fulfillment of that condition in its entirety for its obligating force. We have studied closely the authorities cited to sustain the counsel’s propositions on both points mentioned, and find them inapplicable.
Returning to the inquiry as to whether the conditions of the contract were fulfilled in whole or in part by shipments of sugar by Acklen, it is undisputed that he shipped to the defendants ninety-three hogsheads ; and under the views announced, plaintiffs were clearly entitled to the net proceeds of the same.
II.
As to the fifty-two hogsheads subsequently shipped, we are equally as well satisfied that our conclusion, as announced in our former opinion, was erroneous, and defendants should not be charged with their proceeds.
In the first place, these fifty-two hogsheads were not shipped by Acklen nor received from him. The evidence, moreover, fully establishes that it was not in the power or within the resources of Acklen *699to ship them. Before their shipment and receipt by the defendants they were beyond his control.
In point of fact, Acklen had abandoned all claim and interest in this lot of sugar, and had so announced to the defendants, owing to its being-in possession of Foos & Barnett, the manufacturers of it, under pledge for three thousand dollars; and besides, as we are fully satisfied, subject to the privilege of the laborers for all that it was worth over that sum. It is true that the sugar had not been seized by the laborers, but a number of barrels of molasses had been seized by some employees on the plantation; but whether all of the laborers, or any of them, made or joined in the seizure, the evidence does not inform us. That the wages of the laborers had not been paid and is still owing is proved, and such debts to the laborers necessarily carried with it a privilege on all the products of the plantation.
Consequently, Acklen did not and could not comply with the condition on which plaintiffs were entitled to be paid anything out of its proceeds, and on which their right to look to defendants for payment solely depended. That such was the case was owing to no fault or connivance of the defendants.
In this condition of affairs the defendants went forward, paid the amount of the pledge, afid assumed to pay the laborers; and when the sugar was received and sold, remitted the balance of the proceeds, which was paid over to the laborers, as shown by the evidence in the record; and thus defendants realized or received nothing for this sugar except their commissions on its sales. Under these circumstances, how can it be said that the condition, and the sole condition on which payment was to be made as relates to this lot of sugar, was ever fulfilled ? The contract evidently contemplated — -and neither party could have misunderstood it in this respect — that it was out of the proceeds of the sugar, as realized by the defendants, that plaintiffs were to be paid: in other words — in accordance with the testimony of one of the defendants — that the sugar was to furnish the means to pay the plaintiffs.
Suppose, for instance, that the defendants had not interposed to rescue this sugar from the claims upon it, and that it had been seized — as probably it would have been — to pay these debts, and whilst under seizure it had been shipped to the defendants and they had sold it and remitted the proceeds to the sheriff to pay off these claims, could it be held that, in such case, the defendants would still be bound to again pay the amount of these proceeds to the plaintiffs'?
*700Defendants were not bound to wait till this impending event happened before acting; and in taking measures and spending their money to avert it they should not be placed duriori casu than if they had delayed till the threatened complication had become an accomplished fact. In, either event, they would have been stripped of the entire proceeds of the sugar.
Much has been said in argument as to the effect of the payment made by defendants to Foos & Barnett and to the laborers, and whether such payment subrogated them to the rights of the creditors, and whether the sugar was not still the property of Aciden when received by defendants. The determination of these and other questions suggested are not necessary, in our opinion, to the decision of the case and have no important bearing on it.
The substantial facts to be considered, and they are all-sufficient for our conclusion, are, that under the contract Acklen was to ship so many hogsheads of sugar as a condition precedent for the payment stipulated to be made the plaintiffs by defendants, and thus furnish the means out of which those payments were to be made. To the extent that Aciden complied with the condition and furnished the contemplated means the defendants were bound; but when he failed to provide the means by the expected shipments, whether the failure was from one cause or another, so it was not by the fault of the defendants, they were not bound. The fact that in order to get the sugar defendants had to pay out the entire value of it, amounted to the same thing as if they had never received it and it had never been shipped to them at all.
For these reasons the decree heretofore rendered is now set aside; and it is ordered/adjudged and decreed that the judgment of the lower com’t be affirmed, defendants to pay the costs in both courts.