
    Bumpass against Harrolson.
    
      December, 1823.
    A. oon(ract&,7¡j to sell cotton to B. and C, who are to give their Note for half the price; but A. will not deliver it until he has obtained C’s Note with security for half the price. A. has put an end to the first contract.
    IN the Circuit Court of Lauderdale County, Major Har-rolson declared in case against Gabriel Bumpass. The first, count set out that plaintiff had contracted to sell to defendant and William Berry (then trading in partnership) cotton to the amount of $1000, one half to be paid on delivery ; for the other half, defendant and Berry to give their Note on time. That defendant, by his written order, requested plaintiff to deliver the cotton to Berry, and he (defendant) would be responsible for half the. price, and execute a Bond to plaintiff for it at any time when they should meet. That plaintiff delivered the cotton to Berry, to the value of $1000, one' half whereof was paid in cash, &c. Second count— Indebit assumpsit for $500, for cotton sold and delivered to Berry, partner in trade with defendant, at defendant’s special instance and request, &c. Breach — that defendant, though often requested, has hitherto-failed and refused to .perform his said several promises, &c. The declaration, makes- no special averment of a demand of defendant’s Bond.
    On the trial, on the general issue, the plaintiff produced in evidence a paper as follows:
    
      ‘ Dear Sir — Please to deliver to William Berry the cot- '• ton he ■ has contracted for, and I will be responsible for half the price with him, and sign you a bond for the " amount at any time we meet. Yours, &c.
    “GAB. BUMPASS.”
    A witness on behalf of plaintiff stated that this paper was presented by Berry to plaintiff, who refused to deliver the cotton unless Berry would give him other security ; and one of the grounds of objection was, that the paper was not directed to him. That Berry then gave his bond with William S. Barton, as security for half the amount, ■and paid the other half in money. Witness heard plaintiff say that he should be safe when he got the defendant to sign the Bond, as he would then have Berry, Barton, and defendant bound for the Debt. Witness believes that Berry delivered the order to plaintiff. This being the whole of the evidence, the defendant, by his Counsel, moved the Court to exclude said paper from the Jury ; and also to instruct the Jury, that unless there was evidence that plaintiff had given notice to defendant that he had delivered the cotton to Berry, according to said order, and had demanded or requested of defendant to sign the bond, according to his undertaking expressed in said writing, said writing, if admitted, would not be sufficient evidence to entitle the plaintiff to recover. Which motion and objection were overruled. To which opinions the defendant excepts, &c. Verdict and judgment for plaintiff. Bumpass sued out a writ of Error and filed several assignments of Errors. That, on which the case was decided, is stated in the
   Opinioh of the Court delivered by

Judge Crenshaw,

In this case, the only assignment of Errors necessary to ■be noticed is, “ That the Court erred in refusing to instruct the Jury that unless there was evidence of notice to de- •“ fendant from the plaintiff, that he had delivered the cot- “ ton to Berry according to the order, and of a request to execute the Bond according to defendant’s undertaking, “ the evidence was not sufficient to authorize a recovery.”

The evidence . introduced by the plaintiff proved that he refused to deliver the cotton on defendant’s order, alleging that it was not directed to him. He-delivered the cotton to Berry on his giving his Note with Barton, security : and after obtaining this security, he shewed his artifice, by declaring he had Berry, Barton and Bumpass all bound for the ¿Debt; and intimating, that for this reason he had refused to ■deliver the cotton on the first presentment of defendant’s order. This of itself was a discharge of the defendant’s liablity. The Court should have instructed the Jury, that if they believed the evidence, the law was in favour of the defendant,

McKinley, for plaintiff.

Coalter, for defendant in Error.

"The judgment must be reversed, and the cause remanded

■Judge Ellis not sitting.  