
    Porter v. Walker.
    Where P. was indebted to a firm, and one W. was indebted to P. for wotlc and' labor performed, and P. drew an order on W. in favor of said firm, which’ was verbally accepted by the agent of W., and delivered to and kept by W., and there was no showing that the drawers ever knew of the making of the order, or that the debt which was owing by P- to them was nnpaid, or that W. had ever paid the order, or otherwise promised or beeome liable to. pay the same, or that the drawers consented to receive the same, or had done anything recognizing their right to the order, or that P. was insolvent Held, That the execution of said order, and such acceptance, would not, under the circumstances, prevent P. from recovering against W. for his work and labor.
    The acceptance of the said order, under the facts disclosed, was not payment of the plaintiff’s claim.
    Whether the firm could hold W. liable on this promise or acceptance, they not being present, or assenting thereto, independent of any proof of P.’s insolvency, quere?
    
    Whether P. could revoke the authority given to W. to pay the firm, either before or after notice to them, quere ?
    Whether, granting that the firm could maintain such action against W., P. would thereby be barred from claiming and suing for luí work and labor,, before the firm had notice of such order, quere ?
    
    Where the testimony is not disclosed, and an instruction is refused, which, in a possible state of proof would be correctly refused, this court will not presume such refusal to be erroneous.
    
      Appeal from the Des Moines District Court.
    
    This suit was brought to recover a balance due for work and labor, done by Porter for Walker, in roofing a building.. The answer denies tbe petition, and claims damages on account of -tbe failure of Porter to do tbe work according to contract. Judgment for plaintiff. All tbe testimony given on tbe trial, is not brought up. A part of it is, however, which tends to show, that Porter was indebted to Warrens, of St. Louis, for materials furnished about the work done for defendant, for which they claimed aTien, and that plaintiff, executed the following instrument: “ Burlington, June 17, 1854. M. 0. Walker, Sir: You will please pay Messrs.. CL M. and H. M. Warren, or bearer, one hundred ;and seventy-nine dollars and seventy cents, and this will be .good to you for the same, without offset or discount, for value received. Geo. C. Porter” — which order was verbally accepted by the agent of defendant, and through him, delivered to defendant. It was also admitted that the defendant had not paid the order, and there was no evidence that the W arrens named in the order, or their agent, knew of the existence of the same. The defendant asked the court .to instruct the jury: “That if Porter executed the order in .evidence to Walker, in favor of the Messrs. Warren, and Walker or his agent accepted the order, then plaintiff cannot recover -of defendant the amount of said order.” This was refused -as asked, but given by the court as follows: “ That if Porter executed the order in -evidence on Walker, in favor of -the Warrens, and afterwards Walker, or his authorized agents, accepted the same, this would be a payment in law, on the work done by Porter.” To which refusal and instructions,, defendant excepted, and now assigns the same for error.
    
      H. W. Starr, for appellant.
    
      M. D. Browning, for appellees.
   Wright, C. J.

What the entire testimony in this case was, we are not advised by the record. How far that testimony may have influenced the giving, and the refusing to give the instruction, we cannot tell. It is evident, however, that this order was sought to be -used by defendant, for the purpose of proving payment to that amount on plaintiff’s claim. Now, without anything to show us what the proof was, as to the indebtedness, from Porter to Warrens — whether that had, or had not been paid; without any evidence -that Warrens ever knew, or acted upon the order, so as to show that they consented to the .arrangement; but, on the-contrary, when the record negatives such knowledge, and when it is pretty clearly shown, that Walker merely said he would pay the order, and put it in his pocket, and there kept it, until tbe trial, we are asked to say, that tbe defendant should have been allowed a payment to tbe amount of tbe order on plaintiffs claim. Some very nice and difficult questions have arisen for tbe adjudication of courts, on cases of a similar character to tbe one before us. As, for instance, whether tbe Warrens could bold Walker liable on this promise, not being present or assenting thereto, independent of any proof of Porter’s insolvency; or whether Porter could revoke- tbe authority given to Walker, to pay this amount, either before or after notice to the Warrens; or whether, granting that the Warrens could maintain an action, on such promise, Porter would also, by virtue of such right, be barred from claiming and suing for the money, before the Warrens had knowledge of the order ? And did any or all of these questions legitimately arise on the record before us, this court would, perhaps, not be unanimous. That the' instruction given by the court, was correct, we have no doubt; and the only question, therefore, is, whether the court erred, in refusing the instruction asked by the plaintiff? We cannot say'that it did. It is an abstract proposition, that the execution of the order, and acceptance by the payee, would prevent plaintiff’s recovery to that amount. When it is admitted, that the Warrens had no knowledge of it, and that it had not been paid; and "when we take into further consideration, the further fact, that other testimony, besides this, may have been before the court, to fully justify the refusal, it would be unsafe to defeat the plaintiff’s recovery, by .the application of an abstract proposition, the entire pertinency of which, we have no means of knowing. Porter may have paid the debt he owed the Warrens; Walker may, subsequently to obtaining the order, have agreed to treat it as revoked; and indeed, in many ways, we can see that the abstract proposition would have been correctly refused: and yet there may have been a state of proof, to fully sustain the modification. There is no claim of payment' in the answer; and, indeed, how, or in what manner, the issues presented, were tried, 'is left confused and indefinite. Under tbe circumstances developed in tbis record, we cannot disturb tbe judgment.

Judgment affirmed.  