M'Allister v. Srodes

Martin, J., delivered the opinion of the court. The plaintiff seeks to recover from the defendant the sum of four thousand three hundred and seventy-five dollars, with interest, which he alleges to be in the hands of the defendant, as the price of one-eighth undivided part of the steam-boat Moravian, which the defendant had undertaken to convey to him, or to obtain its conveyance. An agent receiving drafts, and engaging to make title as soon as he collected them, undertakes to present them for payment, and to account to the other party for them, or show that one or more of them remained unpaid, before he is exonerated from his obligation. An agent is bound to administer proof of his performance of the obligation resulting from his agency. The defendant pleaded the general issue. The court was of opinion, that the defendant’s obligation to pay depended on a suspensive condition, the happening of which was not proved, and non-suited the' plaintiff, on the ground that he should have administered proof of the facts on which the obligation was to become absolute. The plaintiff appealed. The consideration of the sale was the sum of four thousand three hundred and seventy-five dollars, and the plaintiff handed over three drafts, amounting to five thousand six hundred dollars, on the defendant’s promise to convey title as soon as he had collected the consideration of the sale, and to pay over the balance, it was shown, that two of the drafts, amounting to four thousand dollars, were paid, and the only question presented for our solution, relates to the error in which the appellant’s counsel contends the District Court fell into, in requiring him to administer proof of the payment of the third draft, or so much thereof as was necessary to complete the consideration money, to wit: the sum of three hundred and seventy-five dollars. It appears to us that the district judge erred. The defendant, in receiving those drafts, and engaging to make title as soon as he collected and received the consideration of the sale, certainly undertook to do what was necessary, that is, to present them for payment. He is, therefore, bound to show that he did so unsuccessfully. If that was the case, the draft must be still in his possession, and the production of it is the first step in repelling the plaintiff’s claim. He was the plaintiff’s agent, ad hoc, and is bound to administer proof of his performance of the obligation resulting from his agency. The plaintiff could not be called on for this proof, which cannot be supposed to be within his reach. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, the non-suit set aside, and that the case be remanded for further proceedings according to law, the appellee paying the costs of this appeal.