
    John Duncan vs. Thomas Gadsden.
    
      Defendant endorsed a note of hand, drawn by Robert Ogden, in, these words, “ the within amount I promise to pay, when in funds belonging to Robert Ogden, the period not to exceed six months;” construed a promise to pay, if within six months, c/e-fendant should have funds of Ogden in his hands; and the fact of his having such funds, within that period, not being averred nor proved, held that the action ivould not lie.
    
    Assumpsit upon a written promise; tried before the city court, May Term, 1824.
    Upon the 4th February 1822, Mr. Robert Ogden gave to the plaintiff the following note; “Charleston, February 4th, 1822. Three months after date, 1 promise to pay to John Duncan or order, one hundred and twenty-ñve dollars, for value received,” (signed) “ Robert Ogden.” Upon this note was the following endorsement; “ The within amount I promise to pay Mr. John Duncan, when in funds belonging to Robert Ogden, the period not to exceed six months, February 2nd. 1822.” (Signed) “ Thomas Gadsden.” Under this endorse-' ment was this receipt: “ Received ten dollars on account of the within, August 6th, 1822.” (Signed) “ J. Duncan.”
    Mr. Holmes, the defendant’s counsel, was sworn as a witness, and deposed that it came within his knowledge, that at the time when the defendant entered into the above engagement, he had no other property belonging to Robert Ogden than an old desk and some notes and costs due to Mr. Ogden, which, if collected, would have been sufficient to pay the plaintiff, but that they were not collected. The defendant’s council contended that the endorsement of the defendant bound him to no more than to■ pay the amount of the note, ifhe should have funds sufficient for that purpose within six months; and that as he had: not funds within that time, or at any other time, he was not liable.
    The recorder stated to the jury that the endorsement of the defendant was rather ambiguously expressed, but construing it as well as he could, its meaning appeared to be, that the defendant undertook to pay the amount of the note when he should be in possession of funds belonging to Mr. Ogden, and that he engaged that this should occur within six months; that is, he promised that in a period not exceeding six months, he would be in possession of these funds; when at the farthest, the note should be discharged: that if the object had been what the defendant insisted upon, the words “the period not to exceed six months” ought not to have been inserted, as a contract to pay generally, when in funds, would have been cleai’ly entered into, had these words been omitted; when the endorsement would have been, “ I promise to pay to, &c. when in funds belonging to Robert Ogden.” That surplusage was not to be presumed, but that the whole of the assumption was to be supposed to have a meaning.
    The jury found a verdict for the plaintiff, and a new trial was moved for, upon the ground; That the Recorder had erred in his construction of the contract.
   The opinion of the court was delivered by

Mr. Justicc fxantt.

The defendant by an endorsement or parol agreement on the back of the note, has undertaken to pay the amount expressed therein when in funds belonging to Robert Ogden, the period not to exceed six months.” It is á promise to pay the debt of another without any apparent consideration. None is stated or proved, and both were requisite to entitle the plaintiff to a recovery. If the foundation of the promise were a benefit to the defendant, or damage or loss to the plaintiff, it certainly does not .appear. On the qualified nature of the promise,. I should, with deference to the opinion of the Recorder, differ with respect to the interpretation to be given to it. If the understanding was that Gadsden, the defendant, was to become absolutely responsible for the payment of this inoney, at the-expiration of the six months; why, itmay.be asked, were the words, “ when in funds belonging to Robert Ogden,” inserted; expressio unius est exclusio alterius. The undertaking is therefore conditional, and amounts to no more than that the defendant would pay the amount in six months, provided funds belonging to Robert Ogden should come tp hand within that period. This fact ought to have been averred and proved, to .entitle the plaintiff to recover. The court are unanimously of, opinion that as no consideration was stated and proved, the plaintiff had no right of action. See 2d Constitutional Reports, 339. The motion .is granted.

Holmes, for motion.

Dawson, contra.

Bay, JYott, and Richardson, Justices, concurred.  