delivered the opinion of the Court. [After stating the reasons why the verdict should not be set aside as being against the weight of the evidence, he proceeded :—J We are then to consider the note as having been made and. deposited in the hands of the, plaintiff, to become operative and be put into circulation, after he should have procured the watch of Daniel Rogers junior, for the defendant.
The plaintiff then takes a ground inconsistent with his first, and contends that if there was a condition, he has performed it; that he did procure the watch from Daniel Rogers junior for the defendant, and held it for him for some time, and thereby the note became valid ; and if he (the plaintiff) afterwards redelivered it to Daniel Rogers junior, it would not 'vacate the note, but would give the defendant a right of action for the watch, or the value of the watch (to be assessed by the jury) should bp deducted from the note.
*502We think the plaintiff is not in a situation to avail himself of these positions. It would be taking advantage of his own wrong. The note was not to be valid unless the defendant had the watch. If the chief justice had charged the jury as the counsel for plaintiff contends the charge should have been, the Court would have given efficacy to the note upon terms never assented to on the part of the defendant. The defendant was willing to give his note for $ 125, for the watch. The jury might have found that the watch was not worth one half the money. The difference or balance, then, would be paid for nothing at all.
If the plaintiff had negotiated the note to an innocent purchaser without notice, other considerations would apply. But he cannot himself by law compel payment of the note by the defendant, and turn him round to seek his remedy by an action of trover or otherwise, as he might be able to enforce it. The defendant stipulated for the watch, and not for the value of it or for a lawsuit.
We think the case should stop here, as the plaintiff has delivered the watch to Daniel Rogers junior, instead of the defendant. We think that as between these parties the note is not to be enforced at law against the defendant.
For these reasons the Court are all of opinion, that the judgment should be rendered according to the verdict, for tne defendant.