
    Executor of Joshua Hickman v. R. W. King & Co.
    A merchant agreed with the payee of a bill, who promised that certain produce of the drawer’s, whose agent he was, should be sent to him, that he would honor his draft on that condition. The produce was not sent till after the bill had been dishonored and protested, and then only a part, with instructions from the owner to devote the proceeds to other purposes. The payee was nonsuited in his action against the merchant, both as acceptor and for money had and received.
    When it is doubtful whether a nonsuit ought to be ordered, the Judge, on circuit, will sometimes, even against the inclination of his judgment, send the case to the jury. But the Appeal Court will not be restrained, by a verdict for the plaintiff, from opening the entire evidence to decide on the motion for nonsuit.
    Before Earle, J., at Charleston, May Term, 1839.
    This was an action of assumpsit against the defendants, as acceptors of a bill of exchange, with a count, also, for money had and received.
    On December 29, 1836, Hickman wrote from Jacksonville, Florida, to the defendants in Charleston ; “ Dr. Holland, who bought my place, has authorized me to say that if you would pay me at sight, or thirty days, ten thousand dollars, you shall have his crop that I sold him at Mulberry Grove. If you agree to do it, you must let me know by the return of the mail. I will pay you the amount that I owe you out of the same. He has sixty-six thousand weight of seed cotton in, and is ginning with two horse gins. I think that he will have it to market by the middle of February. He has one hundred and twenty barrels of sugar, which you will get if you pay me ten thousand dollars.” The defendants answered, January 4, 1837“ Please say in reply to Dr. Holland, that we shall be much gratified in having the sale of the produce of the plantation he bought from you, and so soon as he sends a bill of lading for the same, shipped to us, that we may effect insurance on the same, we will pay you the ten thousand dollars.” On February 21, Dr. Holland drew upon the defendants in favor of Hickman, for seven thousand six hundred dollars. This draft the defendants refused to accept, because they had, as yet, received no shipment from Dr. Holland; and, at Hickman’s request, they returned it protested in form. On March 31, the defendants received from Holland sixteen bales of cotton, thirty-six barrels of sugar, and twenty-four barrels of molasses; and, on April 21, fourteen bales of cotton, two of stained cotton, and forty-three barrels of sugar. (It was in proof that sixty-six thousand weight of seed cotton ought to haye turned out sixty bales.) At the same time Hickman renewed his claim upon the draft; but after some little negotiation and delay, the defendants finally refused to make him any advance whatever.
    Here the plaintiff closed his case, and the defendants moved for a nonsuit, on the grounds: 1. That the defendants were not liable as acceptors of the bill of exchange, inasmuch as the acceptance was only conditional, and the condition was not performed upon which the liability would attach. 2. That they were not liable upon the count for money had and received, upon any supposition of an implied contract, because an express contract was proved, and because the bill of exchange did not specify the particular pi'oceeds of the crop, as the fund out of which it was to be paid, and was, therefore, not an assignment of the crop or its proceeds. But the Court overruled the motion.
    The defendants then proved that Hickman, as agent for Holland, had superintended the getting in of the crop in question, and that it was far short of what he had represented. They showed that the net proceeds of what had come into their hands was four thousand two hundred and thirty-six dollars ninety-eight cents, of which Holland had contracted an account with them for the greater part, and, on May 6, 1837, had drawn upon them in favor of a house in Savannah for the residue.
    The Court instructed the jury that the defendants could not be held liable to the plaintiff as acceptors of the bill of exchange, the acceptance having been conditional, and the condition to be performed by Holland not having been complied with: that on the count for money had and received, the plaintiff might be entitled to recover, or not, according to the view they should take of the circumstances of the transaction. The Court considered the draft drawn by Holland, (which, it seemed to be admitted on all hands, was drawn upon the crop,) as constituting an equitable assignment of the proceeds of the crop; yet, that it was not such as to enable the plaintiff to maintain an action at law; and that the defendants could only be made liable in this action, by some act on their part, before or after the crop came to their hands, by which they agreed or consented to hold the crop or its proceeds for Hickman’s use. In that case, if the defendants, at the time of the shipment of the crop, had directions from Holland to pay the proceeds to Hickman, the plaintiff might recover for money had and received to the use of Hickman. The facts were left entirely to the jury. Verdict for the plaintiff, four thousand six hundred and twenty-seven dollars twenty-seven cents.
    The defendants appealed, and renewed their motion for a nonsuit.
   Giiria; per Richardson, J.

If the condition upon which King & Co. promised to accept the draft of Dr. Holland was practically fulfilled, it is not to be questioned that King & Co. are as liable as if they had accepted the draft. Mason v. Hunt, (1 Doug. 297.) It is equally clear that, if Dr. Holland, in the course of the negotiations and arrangements made for meeting the payment of his draft, placed money in the hands of King & Co. for that purpose, then, too, King & Co. may be made liable- for the money so received for Hickman. These legal propositions are undeniable; and, the jury having found that King & Co. did receive the proceeds of the Doctor’s crop for the payment of his debt to Hickman, the questions for the Court to decide arise out of the state of facts, from which the jury drew the inference that King & Co. had received such proceeds for that purpose. We have, then, to inquire, 1. whether the condition was fulfilled, entire, so as to compel King & Co. to pay the draft; or, 2. was it fulfilled in part, so as to render them, liable for money received for the use of Hickman.

The facts are almost as plain as the law of the case. In answer to Mr. Hickman’s letter of December 29, 1836, King & Co., by their letter of January 4, 1837, contracted with Hickman to accept the draft of Dr. Holland for ten thousand dollars, provided the Doctor should send them sixty-six thousand pounds of seed cotton — equal to about sixty bales of ginned cotton — and also one hundred and twenty barrels of sugar. Accordingly, on February 20, Dr. Holland drew in favor of Hickman, for seven thousand six hundred dollars. This draft was returned to Hickman, on March 17, duly protested, because the cotton and sugar had not been transmitted to King & Co., or placed within their control, according to their contract of January 4. At this period, no one can suppose that King & Co. were in any way bound to pay the draft.

Afterwards, however, some cotton and sugar were sent, which would seem to be a partial fulfilment of the condition required by King & Co. But it should be borne in mind, that Hickman, only acting apparently as the agent of Dr. Holland, made the representation of his crop to King & Co., and promised the consignment to them for a certain purpose; whereas, the cotton and sugar were shipped by Dr. Holland himself, without notice of the supposed purpose, and he received the usual advances in such cases; which left a balance of only one thousand six hundred and thirty-seven, out of the sales of four thousand two hundred and thirty-six dollars ninety-eight cents. Holland also demanded this balance, and finally assigned it to a person in Savannah, after Kitig & Co. had refused to accept his draft to G. Anderson & Son. Here we have a total failure, if not an absolute contradiction, of the consignment to meet the bill, as promised by Hickman. It would seem, from such evidence of his intentions, that Dr. Holland never placed his cotton and sugar at the discretion of King & Co., or considered his crop as pledged in their hands to pay the draft to Hickman. On the contrary, he appears, by his whole conduct, to have repudiated the arrangement, which had been made in his name by Hickman, to meet the draft of seven thousand sixhundred dollars. This course, we may presume, was adopted upon the protest of the draft on March 17, by King & Co. Por, although King & Co. after-wards received thirty bales of cotton and seventy-nine barrels of sugar of Dr. Holland, yet these, if we may judge from the use made of the proceeds by Dr. Holland, were placed in their hands for other purposes than to pay the protested draft. What could King & Co. do 1 They had no discretionary power over the cotton and sugar of Dr. Holland. Unless authorized by him, they could not pay over the amount of sales to the protested draft, or to Hickman: because Hickman himself, (not Holland,) had engaged that Holland’s crop should be consigned to them to meet the draft.

It is very rational to presume that Dr. Holland had promised Hickman to fulfil the engagement made in his name, in order to induce King & Co. to honor his draft. But it is clear, from the evidence, that he did not consign any cotton and sugar for such purposes. Por some cause, Dr. Holland did not recognize or fulfil the terms and conditions held out by Hickman in his letter of December 29, 1837, upon which King & Co. promised to accept the draft to Hickman.

It is vain to urge that this was the fault of Holland, not of Hickman. That may or may not be. It is enough that the condition upon which King & Co. engaged to accept the draft of Dr. Holland in favor of Hickman did fail. King & Co. did not make the contract with Dr. Holland. They relied upon Hickman, and his warranty was, that Holland would ship the cotton and sugar, for the purpose which he (Hickman) promised, to King & Co. The failure, then, has been entirely in the condition promised on the part of Hickman. And King & Co. continued, throughout the whole transaction, in the same situation in which they were at the time they first protested the draft of seven thousand six hundred dollars. It does not appear that they ever had any of Holland’s money that they could legally credit to Hickman. Such an idea can only arise from assuming that Holland shipped his cotton and sugar to King & Co. in order to fulfil the promise of Hickman that Holland would do so for a certain purpose. ' But it is evident, whatever may have been the understanding between them, that Holland kept his cotton and sugar under his own control and used the proceeds for other purposes.

Where then is the evidence that King & Co. ever had authority to apply the proceeds of Holland’s cotton and .sugar to the credit of Hickman? We have, it is true, the assurance of Hickman that the cotton and sugar would be consigned for that purpose by Holland. But Holland himself, appears to have discarded every idea of the kind, although he employed King & Co. as his factors. Who then must suffer? Not King & Co., but Hickman, who failed to induce Holland to consign his cotton and sugar for the purpose of meeting his draft. We are unable, therefore, to perceive, in the evidence before us, that the conditional promise made by King & Co. to accept the draft, was at any time binding upon them; because the condition was never fulfilled, either to the amount of the draft, or to the extent of the proceeds of Holland’s cotton and sugar. Such proceeds, it is true, passed through their hands as Holland’s factors. But they were never placed, by Holland, in the hands of King & Co. to meet the engagement promised by Hickman in the name of Holland. Between the promise of Hickman, of what the Doctor would do, and the non-performance by the Doctor himself, the condition was never fulfilled, and King & Co. were kept in suspense and powerless from the beginning to the end of the transaction.

It may be difficult to account for such non-conformity between the Doctor’s action and Hickman’s word. But, assuredly, it does not fall on King & Co. to reconcile their misunderstanding. King & Co. had nothing to do but to receive the cotton and sugar of Holland, either as his factors, or upon such terms as he, not Hickman, might direct. Whereas, the plaintiff’s action is bottomed, upon the assumption that, if Holland sent his crop to King & Co. at all, the proceeds must go to pay his debt to Hickman, upon Hickman’s word, with or without the direction of Holland. That is to say, the promise of the imputed agent, Hickman, is to control the conduct and direction of the actual principal, Holland. And that is to be done, too, to support his action against a new set of debtors, King & Co., in place of Div Holland. If Holland had simply consigned his sugar and cotton to King & Co., there would have been reason, under attending circumstances, to imply his' assent that the proceeds should go to pay his debt to Hickman; and in this way, a privity between Hickman and the defendants, as to such proceeds, might have been constituted to support the verdict for money received for Hickman. But it belongs to the owner and consignor to direct the appropriation of his consignment, and we cannot imply his assent to a particular appropriation, when he has himself plainly dissented by making a different appropriation. Assuredly, King & Co. could not, upon the promise of Hickman, have resisted a suit brought by Holland for the balance of his crop in their hands. And if so, Hickman cannot recover the same money.

The reasoning and doctrine of the decision in Williams v. Everett, (14 East. 581,) and the cases referred to, are authoritative, if not conclusive, of this case. Such precedents are constituent parts of sound judicial decisions at common law, and belong to the full hearing which the common law awards to all parties. It was doubtless upon this last consideration that the Circuit Judge refused a nonsuit in the case before us. That is the usual course of our Courts in cases of complexity, through caution; because, when the judge and jury concur, after a full hearing, the decision often satisfies the losing party. Upon the subject.of judicial decision, I would observe, that we would have the trial by jury, in the language of our constitution, “ as heretofore used in this State, forever inviolably preserved.” It affords, perhaps, the most importent practical check upon power found in the State constitution. But the qualifying terms as heretofore used in this State,” have their place. And wherever a verdict of indebtedness has been rendered for a plaintiff, whose case is incompetent in itself to constitute the essential premises of such a verdict, there is a counter and conservative check, “ as heretofore used in this State,” which must also be inviolably preserved. Otherwise, the very veneration, now so justly felt for jury trials, would become a mere name to impose upon the weak and unreflecting. And the court being unanimously of opinion, in the case before us, that there is nothing in the evidence to warrant a verdict for the representatives of Mr. Hickman against King & Co., whatever may be the merits of their claims upon Holland, the nonsuit moved for on the circuit is granted.

Permnecm, Mesyclc and Finley for the motion.

Gantt, Earle and Butler, JJ., concurred. 
      
       See 1 Rich, 251; 1 Strob. 273. An.
      
     