
    WILLIAM S. SEE, Plaintiff and Respondent, v. ISAAC BERNHEIMER, Defendant and Appellant.
    Before Curtis and Sedgwick, JJ.
    
      Decided July 2, 1874.
    I. CONTRACT. PAYMENT ON CONDITION. PERFORMANCE.
    1. Condition complied with. This must be shown by plaintiff.
    
      a. Where A, agreed to pay C. out of funds in his hand belonging to B. for goods to be sent by C. to B. at a specified place, when the goods shall have arrived at such place,
    Held,
    that C. to recover from A. must prove that the goods arrived at the specified, place.
    
    
      b. Evidence. Presumption of arrival.
    
    1. No presumption arises against A. that the goods had arrived, from the fact that 0. had shipped them by railroad or steamer to B., at the specified place.
    
    Appeal by defendant from a judgment in favor of plaintiff entered on the report of a referee.
    The complaint averred that, on June 22, 1859, in consideration that the firm of Lee & Mapes (the plaintiff being the assignee of the interest of that firm) would sell to one Hayward, of St. Paul, Minnesota, right marble mantels and mantel breasts, the defendant promised said firm that he would be answerable for the payment by the said Hayward of the price of the goods so sold; that afterwards the plaintiffs, on the faith of the said guaranty, sold and delivered to the said Hayward the said articles for the price of two hundred and thirty-two dollars; which sum became due from Hayward to said firm on or about said August 3, 1859 ; that payment was duly demanded of Hayward, but the same was not made, of which the defendants had due notice, and that payment had been demanded of defendant, and by him refused.
    The answer contained a general denial.
    The issue was referred, and on the trial the plaintiff testified that the defendant and Hayward came together to the office of his firm; that the defendant said that Hayward was building some houses at St. Paul, Minnesota, for him, as contractor; that he, defendant, wanted some mantels for the houses ; that the bill for the mantels was to be made out to Hayward, and presented to the defendant, and he would pay it out of the money he had in his hands due Hayward; that the defendant was to pay for them as soon as they arrived at St. Paul, in Minnesota. He was to get word from Hayward. Hayward was to write him back, and then • Bernheimer was to settle the account.
    At close of plaintiff’s case the defendant moved that the complaint be dismissed on the following, among other grounds: that the defendant was sued as guarantor, and that the contract, not being in writing, was void under the statute of frauds ; that it was not shown that Hayward had notified the defendant of the arrival of the goods, or that the goods ever arrived in St. Paul.
    The motion was denied; to which exception was taken. The plaintiff applied for leave to amend the complaint. Leave was granted, and to this the defendant excepted.
    
      The amended complaint averred, as to the contract, that Hayward was constructing houses at St. Paul for the defendant; that on that account the defendant was, or was about to become, indebted to Hayward, and then had funds payable to Hayward; that it was mutually agreed between the plaintiff’s firm, the defendant and Hayward, that the firm should send the goods, and that the defendant would pay to the firm so much of his then or prospective indebtedness to Hayward as was necessary to discharge the claim of the firm ; that relying on this promise, the goods were sent to Hayward, at St. Paul; and the goods were received and used by the defendant in the construction of his houses.
    The defendant moved to dismiss the amended complaint, on the ground that it was not sustained by the evidence. The motion was denied, and exception taken to the ruling.
    The defendant gave evidence.
    It appeared in evidence that Hayward had died before he could give notice of the arrival of the goods, if they in fact had arrived.
    The referee directed judgment for the plaintiff.
    
      A. J. Dittenhoefer, attorney, and C. A. Runckle, of counsel, for appellant.
    
      Sidney T. Harris, attorney, and of counsel, for respondent.
   By the Court.—Sedgwick, J.

The plaintiff clearly could not recover upon any contract testified to in the case, excepting that one which the plaintiff stated in his testimony. He swore that the money was to be paid by defendant out of funds due to Hayward, when the goods arrived in St. Paul, and when Hayward had notified him of their arrival. If such was the contract, even if its terms were not reasonable, the defendant’s liability arose only from it. In fact, if the debt was to be paid out of Hayward’s money, it was a reasonable and probable provision in favor of Hayward that the defendants should pay only after it was certain that Hayward had received the mantels. The notice by Hayward, perhaps, might be dispensed with, he having died before he could send the notice. This, however, did not dispense with the obligation on plaintiff’s part to prove that the goods had in fact arrived in St. Paul’s. This was one of the conditions, on the happening of which the defendants were to pay out of Hayward’s funds. There was evidence that the goods were sent from the city of Hew York, but not that they arrived at St. Paul’s. There was no presumption against the defendants, that because they were sent by railroad or by steamer they reached the city of St. Paul’s.' For failure to prove this, the referee, in my opinion, should have granted the motion to dismiss the complaint.

It is unnecessary to go further, although I think that the promise of the defendant was evidence of an independent obligation on his own part and not simply a promise to answer for the debt of Hayward. In view of our conclusion, it would be of no practical importance to determine whether the referee had power to amend the complaint.

I am of opinion that the judgment should be reversed, a new trial ordered, the order of reference discharged, with costs to appellant, to abide the event.

Curtis, J., concurred.  