Bird v. . Ross

HerdersoN, Judge. The deed of the 10th April, 1812, with the endorsement, is evidence that Clarke and Ross had become the equitable owners of the judgment. But it furnishes no evidence of the terms and conditions of the transfer. They are left to be implied by law, from the circumstances of the transaction. If Clarke and Ross advanced, or agreed to advance the ftill amount of the -judgment with interest, without having a day of payment *474 gjven to them, this imposed on Bird a guarantee that the money should, or might with reasonable exertions, be collected ; for it is not to be presumed, that Boss and Clarke would pay, or agree to pay the full amount, without having day of payment given, or some such equivalent, and take upon themselves the risk of collection.— Tn such case, therefore, the risk of collection must have been assumed by Bird, for the law always looks to the consideration, in raising the promise. If less than its amount was given, something like its market value, the law placed the risk on Ross and Clarke, for they had been paid for it in the reduction of the price. If that was the fact, they would he bound, whether they collected the money or not. The only obligation imposed oo Bird was, that the money called for by the judgment was due, and I suppose that there was sucli a judgment. I think therefore, that the Judge erred, in informing the Jury that the Defendant was liable to pay (he whole amount, whether he collected the money or not. In the absence of all evidence, as to the special price agreed to be paid for any article, the market value Ms the one which the law presumes (o be understood, and fixes that as the price. But there is some evidence from which the Jury might properly come to a conclusion what was the agreement, viz. the after conduct of the parties. For although the conduct of the parties cannot be used to explain a contract, it is the best evidence to prove what that contract is. I think therefore, that there should he a new trial; for although the evidence might have satisfied the Jury that Boss had, or might have received the money, or was guilty of fraud, in not attending to the suit for the High Shoals, these are facts of which the Court can form no opinion. Possibly the Jury decided on the ground first mentioned by the Judge, in which we think there was error, and for that it must go before a Jury again. Per Curiam. — Judgment reversed.