
    Asahel H. Wildes vs. Thomas Wade & another.
    Where the condition of a bond was, that the obligors, within a year from the date thereof, should deliver up to the obligee a stock of drugs then in the store of one of the obligors, valued at a certain sum stated; or should return the same kind of property of equal value; or should pay the obligee in money the sum at which the drugs were valued; it was held, that the act of one of the obligors, in consenting to a disposition of the goods by the obligee, for his benefit, before the expiration of the year, must be taken to be the act of both or as binding on both; and that such. disposition, with the consent of one of the obligors, was not a prevention by the obligee, of a performance of the condition, but a payment, pro tanto, of the sum which the bond was given to secure.
    This was an action of debt on a bond, dated the 15th of December, 1847, executed by the defendants, Thomas Wade and John Wade, in the penal sum of four hundred dollars, and conditioned that the defendants should deliver up to the plaintiff, at the expiration of one year from said date, “ the drugs, medicines, fixtures, &c., in the store, occupied by the said Thomas Wade, in as good condition as at present, valued at ¡$>319.33, as per schedule of the same hereunto annexed, or return to the said Wildes the same kind of property, the wholesale market price of which shall amount to the said sum of $319.33, or pay to the said Wildes in money the said sum of $319.33.”
    The case was tried in the court of common pleas, before Perkins, J., who signed a bill of exceptions, the material parts of which were as follow: The plaintiff proved the execution of the bond and read it in evidence, and the schedule thereto annexed, and put in evidence tending to show a breach of the bond, as set out in his declaration. It was proved that Thomas Wade, one of the defendants, had charge of the stock of goods named in the bond, as superintendent of the sales thereof, or in some other capacity, for a short period of time after the date of the bond. But to whom the goods were delivered on the sale by the plaintiff, did not appear otherwise than by the bond. It appeared that Thomas Wade left the store of goods, and one Smith tended the store after Thomas was gone, and had tended for Thomas before he had left, and the two had sold a portion of said goods.
    There was evidence tending to show, that after Thomas had left, the other defendant, John Wade, who was the father of Thomas, having doubts whether Thomas would return, and fearing a diminution of the property during his absence, without his consent or knowledge, agreed by parol with the plaintiff, that the plaintiff should take possession of said stock of goods, so far as any remained in the store, and apply the value of them towards the payment of the bond. The plaintiff took the stock left, and in the store, on or about the first day of May, 1848, and afterwards sold the same. The whole value of the goods received by the plaintiff amounted to eighty-four dollars less than the amount named in the schedule annexed to the. bond. It was not denied that there was an agreement by parol, under which the plaintiff was to take the stock in the store and apply it in payment of the bond, either in whole or in part, at least as far as it would avail to that end. The defendants contended that such agreement thus made in the absence of Thomas, and without his knowledge or consent, avoided the bond as to him. The judge ruled, that upon proof of the due execution of the bond and a breach thereof, the plaintiff would be entitled to recover of the defendants, and that, if the jury found a verdict for the plaintiff, judgment would be rendered for the penalty under the statute, subject to be reduced according to the statute provisions; and that upon the question of the plaintiff’s right to recover upon the bond, the agreement between the plaintiff and John Wade, as to taking back the property, as above stated, would not defeat the plaintiff’s right upon the bond as against Thomas Wade, the other facts necessary to a recovery being established, and the bond not being thereby paid in full or otherwise complied with or discharged. It appeared that while the stock was in the care of said Smith, either when he was tending under the direction of Thomas, or after Thomas had left, and during the absence of said Thomas, the plaintiff went into the store and received from said Smith certain money to the amount of fifty-one dollars, the proceeds of goods sold, for which he gave a receipt, and also some small articles of goods, amounting in value to less than one dollar. There was no other evidence of the amount or. value of the stock taken by the plaintiff towards payment of said bond as above stated than the value or price named in the schedule produced, by which it was agreed to be taken, and to show the amount taken.
    After all the evidence had been introduced, and after the above rulings and directions, the parties agreed that both issues, that of the liability of the defendants on the bond, and that of the amount of damages might be passed upon by the jury at the same time, and on the evidence as in the case.
    The defendants requested the judge to instruct the jury, that if they found a breach of the condition of the bond, they should allow whatever was the benefit to the plaintiff of receiving the goods eight months sooner than he was entitled to them; that such anticipated receipt of the goods must of itself, and without any other proof, be regarded as a benefit to the plaintiff, and that, at least, unless something appeared to control it, the benefit to the plaintiff was the legal interest on the amount received from the time when received to the time when by the contract it was to be received. But the ludge ruled, that in the absence of all evidence to control the bond, or the effect thereof, upon a proof of breach as above directed, the plaintiff would be entitled to recover the full amount of the sum named, as to be paid, in the obligatory part of the bond, to wit, $319.33; but that there was evidence going to show payment and satisfaction, in part or in full, of the bond, and so far as payment or satisfaction had been made, the jury on the issue on the assessment of damages should deduct that from the sum due by the terms of the bond, and find only the balance for the plaintiff; that as to the money and small articles taken by the plaintiff from the store, as above named, the jury should find the amount and value of them and deduct the sum from the bond; and as to the stock taken by the plaintiff with the understanding and under the agreement between him and John Wade, the jury should find the amount and value on such evidence as they had before them; if there was any evidence of benefit to the plaintiff by the anticipated receipt of the goods, or any thing that had been received, the jury should allow so much as they found that benefit to be; but in the absence of all evidence on that subject, the jury would not assume that there was any such benefit; that in the absence of any agreement or understanding for the allowance of interest, no interest, as such, should be allowed, on the amount of anticipated receipts; and that on the question of payment and satisfaction, and so far as the defendants depended on these in their defence, the plaintiff having established his side of the case, the burden of proof was on the defendants to show such payment and satisfaction and the amount.
    The judge requested the jury, in case they found for the plaintiff, to return two verdicts, one on the general question of the liability of the defendants, and the other assessing the damages. The jury accordingly found two verdicts for the plaintiff and the defendants excepted*
    
      J. W. Perry, for the defendants.
    
      W. D. Northend, for the plaintiff.
   Metcalf, J.

We see no error in the rulings or instructions in this case. The act of one of the obligors, in consenting to the disposition of the goods, must be taken as the act of both, or as binding on both, especially as it worked no injury to his co-obligor.

The disposition of the goods, which was made by the obligee, with the consent of one of the obligors, was not a nrevention, by the obligee, of a performance of the condition of the bond, but must be regarded as payment, pro tanto, oi the sum which the bond was given to secure.

Exceptions overruled.  