Jarvis v. Rogers

After argument, Prentiss, Ch. J. pronounced the-opinion of the Court. — Considering the claim upon the note in question as prosecuted for the benefit of the appellee, it is very clear that no recovery could be had upon it; for Mr. Hunter, the appellee’s attorney, expressly refused to accept or recognise the note. But it was insisted on the trial, that the claim might be prosecuted, and a recovery had upon the note, in the name of the appellee, for the benefit of Spencer ; and it appears that this was the ground upon which the decision of the court below proceeded. The exceptions state that Spencer was interested in the note, but how does not appear ; shongb, probably, it was in consequence of his supposed liability to the appellee for the property attached in the suit on the appel-lee’s demand against Barrett, Hitt, and Barnes. In the written agreement, he claimed to act, not in his own right, but as agent of the appellee, and took the note payable to the appellee; and it is at least questionable, whether, as the appellee, by his attorney, refused to accept the note, and disclaimed having any interest in it, Spencer could recover upon it, in the name of the appellee, for [339] ills own benefit. But admitting,that Spencer might avail himself •of the note, and prosecute a suit upon it for his benefit, yetto euable him to recover, he must shew a performance of the conditions on which the note was executed. The payment of the note depended on the performance of certain things which were in the nature of conditions precedent, and without the performance of which the note was to have no operation or effect. One oí the conditions was, that a stipulation in writing should be made and delivered to the makers of the note, securing to them the benefit of the commitment and imprisonment of Barrett on the execution in favor of the appellee ; and until that was done, it was expressly agreed, that the note should not be delivered to the appellee, or his attorney, or be subject to their controul. But evidence being given, that, nine or ten months after the note and agreement were made, Barrett was admitted to die poor debtor’s oath, and discharged from imprisonment, the court below decided, that the condition had become immaterial, and proof of its performance was unnecessary. Where the performance of a contract depends on some act to be done by the plaintiff, the doing of the act is a condition precedent, which, according to the general rule, must be strictly performed, and no inquiry can be had whether its performance would have been beneficial or not. If the parties by their contract make it material, the court cannot dispense with if; but a performance, or some excuse for the nonperformance, must be shown. But we can readily see that the stipulation, agreed to be made and delivered, might have been beneficial to-the makers of the note. Before Barrett's discharge from imprisonment, it would have given to them the benefit of the execution against him, and they might, perhaps, have shewn, that he was not entitled to the poor debtor’soatb, and thus secured to themselves a benefit from his commitment. The condition, which required that suits should be commenced against Hitt and Barnes on the original demand of the appellee, the court below considered had been performed. It is true, that proof was given that writs were sued out on the demand against Hitt and Barnes, but it was also proved, that Mr. Hunter, the ap-pellee’s attorney, not only refused to authorize the suits, but as soon as he learnt that they were commenced he ordered them to be discontinued. The suing out of the writs, under these circumstances, cannot surely be considered a performance of the condition. It must be taken that the parties intended the institution oí suits which might he carried on and prosecuted by the mo340 fcerg of the note for their benefit; and rt would be unreasonable ..... to hold, that unauthorized suits, which the appellee’s attorney unimmediately discontinued, and would not suffer to go on, satisfied the condition. Child, for plaintiff. Judgement reversed, and cause remanded to the county court for a new trial.