
    ■’‘'[Philadelphia, January 2,1838.]
    GEISSE against DOBSON.
    IN ERROR.
    1. In assumpsit for money had and received, the plaintiff gave in evidence an order drawn by Y. Z. & Co. upon the defendant, whieh stated that a certain sum had been placed in their hands by W. S. & Co., for the payment of freight on certain barrels of flour, shipped by B. & P., per schooner Forrester, consigned to W. S. & Co., provided no claim was made on the same by B. & P., for a violation of contract on the part of the plaintiff, in not consigning the schooner to W. S. & Co.; and requested the defendant, should B. & P. authorize the same by admitting that they have no such claim, to pay over the said sum to the plaintiff. The plaintiff then offered a witness to prove that the defendant had received from the drawer the money mentioned in the order. Held, that the evidence was admissible, although it was not accompanied with the stipulation to produce other proof of a promise by the defendant to pay ; the plaintiff not having been called upon at the time to give such stipulation.
    2. It was held also in the same case, that a bill of lading for the flour mentioned in the order, signed by the plaintiff and another, and containing a receipt endorsed, signed by W. S. & Co., for the flour mentioned in the ' bill of lading, and stating that payment of freight was refused on account of a supposed violation of contract, and to be regulated in Philadelphia with the shippers — was admissible'on the part of the plaintiff.
    3. One offered as a witness on the part of the plaintiff, stated on his voire dire, that he was attorney in fact for the plaintiff, and had a demand of his own against the plaintiff, but that the plaintiff was able to pay him without the money, though he supposed that he should get his portion of it; that he had not settled with the plaintiff, and could not tell which was debtor; nor had this money been appropriated to pay him. Held, that under the circumstances, he was a competent witness.
    
      On a writ of error to the District Court for the City and County of Philadelphia, it appeared that Robert Dobson brought an action on the case in that court against George W. Geisse, in which the plaintiff declared in assumpsit for money had and received, and the defendant pleaded non assumpsit, and payment, &c.
    On the trial before Coxe, J., on the 28th of_ January, 1834, the plaintiff gave in evidence the following letter, addressed to the defendant by a mercantile house- in the island of Cuba.
    “St. Jago de Cuba, April 2, 1827.
    George W. Geisse, Esq.
    Dear Sir, — The sum of two hundred and fifty dollars has been placed in our hands by Messrs. Wright, Shelton & Co., for the payment *of freight on 250 barrels flour, shipped by r*gc-i Messrs. Bevan & Porter, per schooner Forrester, con- *- signed to Messrs. Wright, Shelton & Co., provided no claim is made on the same by Bevan & Porter, for a violation of contract on the part of Mr. Robert Dobson in not consigning the schooner Forrester, and that part of her cargo under his control, to the said house of Messrs. Wright, Shelton & Co. You will therefore, should Messrs. Bevan & Porter authorise the same, by admitting that they have no such claim, pay over to Mr. Dobson the aforesaid sum of two hundred and fifty dollars, charging us therewith.
    Yery respectfully,
    Your obedient s’ervants,
    Yillalon, Zavala & Co.”
    The plaintiff’s counsel then called a certain James Caldwell as a witness, who was objected to by the defendant’s counsel, but the judge admitted him, and he testified in effect that he was an arbitrator in this cause many years ago — six years; and that his recollection was not accurate, as to minute circumstances, but this was a very important part of the cause, and made an impression on him. Mr. Geisse said, when examined as a witness, that he had funds in his hands of Yillalon, Zavala & Co. to pay that draught or letter ; (meaning the letter of April 2d, 1827, above-mentioned,) but being questioned by Mr. Dunlap whether he had funds to pay that draught, he replied no. But whether he had funds or not, belonging to that draught, he would accept their order for $10,000. He, (the witness,) did not recollect what Geisse, the defendant, said as to his relations with the house of Yillalon, Zavala & Co. at the commencement’ of this suit: he, (the defendant,) then professed a readiness to pay, if Bevan & Porter did not object. It was on the ground of the objection of Bevan & Porter, that the witness understood the defendant objected. The only objection to his liability was the objection of Bevan & Porter.
    The plaintiff’s counsel then called a certain George Peterman, who being sworn on his voire dire, at the request of the counsel for the defendant, declared as follows, viz. “ I can’t say I am interested in the event of this suit. I was left to act under a power of attorney of the plaintiff to receive this debt, and pay it over to him, given me by Captain Dobson, (the plaintiff.) I have not settled with the plaintiff for some time, and cannot tell which is the debtor, Dobson or myself. I am not to retain any thing received in this suit myself. If there is any thing due me when it is recovered, and he is in my debt, I suppose I shall get my portion of it. He is able to pay me without this, and I shall be paid out of this or other money. I cannot say if Dob-son is in my debt. He has sued me for two hundred dollars. This has not been appropriated to pay me. I was appointed attorney when the transaction took place — can’t say if it was before *or after suit brought. It strikes me the plaintiff L -* started it. I cannot say if Captain Dobson or I went,to Mr. Ingersoll. I have paid some costs to the arbitrators, and might Have paid something to the members of the bar, as the agent of Captain Dobson. There are no other debts of Captain Dobson which I am collecting, nor have I any other property of his under my control — he says the balance is in his favour. Captain Dobson has brought suit against several persons, and I am one of them. I have taken defence in that suit.” “I had one hundred dollars sent to m'e by Captain Dobson from New Orleans to pay the expenses in this .suit at the time — for that very purpose.”
    The counsel • objected that the witness was incompetent, but the Judge overruled the objection, and the witness having been sworn in chief,- gave the following testimony : — “After this letter, called a draught (April 2d, 1827,) arrived here, I took it to Mr. Geisse, and he told me he must see Bevan and Porter, and if there were no objections on their part, he would pay it, on a day which he named, when he desired me to call again. I called accordingly, and he told me that they objected, and it must lie over for some time; that probably they would agree. It did so for some time, when Dobson arrived, or he was here at the time, and I handed it over to him. I then handed it over to Captain Dobson. I do not -know if he were here at first, I learnt he were here at the time of the rejection. The money was not paid- — the defendant would not pay it. Geisse had this paper in his hands two or three days. He never said a word about not having funds — he was willing to pay it if Bevan and Porter had no objection; he stated if they, (Villalon, Zavala & Co.) would draw on him for $10,000, he would pay it. He was ashed if he had funds in his hands to pay this particular draught, and he replied it was of no consequence if he had or not, as he would pay their draught if it was for $10,000.”
    Another witness produced by the plaintiff, testified that he heard the defendant say, at the meeting of the arbitrators, that he had funds for the payment of the draught, and was ready to pay the amount, if Bevan and Porter were willing. The defend-, ant was not examined, as a witness by the arbitrators, but they put several questions to him which he answered. On his cross-examination, this witness testified, that the defendant said, he had funds for the payment of the particular draught, but even if he had not, he would pay $10,000 for that house at any time they would draw upon him. He did not speak of any particular remittance.
    The plaintiff’s counsel then offered in evidence a bill of lading signed by the captain of the schooner Forrester, mentioned in the draught or letter of Yillalon, Zavala & Co. The defendant’s counsel * objected that it was inadmissible as evidence r^otr-i against the defendant, but it was admitted by the Judge, and read as follows:
    “ Shipped, by Bevan and Porter, in good order and well conditioned, in and upon the good Schooner called the Forrester, Byram, master, now lying in the Port of Philadelphia, and bound for St. Jago de Cuba. To say — Two hundred and fifty barrels Flour for account and risk of Shippers, marked and numbered as in the margin; and are to be delivered in the like good order and condition, at the said port of St. Jago de Cuba, (the dangers of the seas only excepted,) unto Messrs. Wright & Shelton & Go. or to their assigns, he or they paying freight for the said Flour, one dollar per barrel, without primage and average accustomed. In witness whereof, the said master hath affirmed to three bills of lading, all of this tenor and date; one of which being accomplished, the others to stand void.
    Dated in Philadelphia, the twenty-seventh day of February, 1827.
    W. H. Byram.
    Robert Dobson.”
    “Received the two hundred and fifty barrels flour, stated in this bill of lading. Payment of freight refused on account of a supposed violation of contract, and to be regulated in Philadelphia with the shippers.
    Wright, Shelton & Co. ■
    St. Jago de Cuba, March 30, 1827.”
    
      The jury found for the plaintiff, and the defendant having taken j a bill' of exceptions to the decision of the Judge, in the admission j of the testimony above mentioned, removed the record to this | Court, and assigned the following errors.
    “1st Error. The admission of James Caldwell to prove the.' receipt by the plaintiff of a certain sum of money mentioned in a' conditional letter, or order, dated April 2, 1827.
    . Because no such evidence was competent in an action for money had and received, without proof or allegation that such condition had been either waved or complied with. The defendant below (the plaintiff in error,) being only liable in this form of action upon an absolute unconditional promise.
    2d Error. The admission of George Peterman as a witness, although he was directly interested in the event of the suit.
    3d Error. The admission as evidence of a certain bill of lading, dated 27th February, 1827.
    1st. Because the said plaintiff in error (the defendant below,) was no party to the said bill of lading; nor was it proved or alleged to have been made with his knowledge or assent. r*381 *2d. Beca/use he had no interest in the shipment, ves-
    ■- sel or contract mentioned or contained in said bill of lading.
    3d. Because it was irrelevant to the matter in issue.
    4th. Because it was not competent evidence for the plaintiff below (the defendant in error,) under the pleadings.”
    Mr. Rare and Mr. Williams, for the plaintiff in error.
    The letter to the defendant upon which the action was founded, was not a bill of exchange, and imposed no duty on the defendant. His acceptance, if any took place, was a conditional one, and the performance of the condition must be proved. Chitty on Bills, 45, 46, 439; Bayley on Bills, 14, note 30; Kidd on Bills, 38; Haydock v. Lynch, (2 Lord Raym. 1563); Exparte Adney, (2 Cowper, 460); Williams v. Everett, (14 East, 582.) The action for money had and received, would not lie on the alleged contract. Worsley v. Wood, (6 Term Rep. 710); Collins v. Gibbs, (2 Burr. 899); 1 Esp. Nisi Prius, 129, 130; Saxton v. Johnson, (10 Johns. Rep. 418); 1 Chitty’s Plead. 309 ; Jones v. Barkley, (Douglas, 686); Holliday v. Camsell, (1 Term Rep. 658); 2 Saunder’s Plead. 673; 1 Chitty’s Plead. 341.
    2d. Peterman was not a competent witness, being clearly interested. (2 Esp. N. P. Cases, 730); Innis v. Miller, (2 Dall. Rep. 50); Miles v. O’Hara, (1 Serg. & R. 32.)
    3d. The evidence of Caldwell, the bill of lading, and other testimony ought not to have been admitted until the plaintiff had shown that the condition upon which the acceptance was alleged to haye taken place, had been performed. Besides, upon the contract given in evidence, the action was improperly brought in the name of Dobson M'Cormick v. Trotter, (10 Serg. & R. 94.)
    Mr. C. Ingersoll and Mr. J. It. Ingersoll contra.
    ' The charge of the Judge was in favour of the defendant, on the law of the contract, but the jury found against him on the facts, and the Court below refused a new trial. The right of the present plaintiff to sue in his own name, and the propriety of the form of action are not before this Court; the only exceptions taken being to the admission of evidence. The letter was an open one, and was a bill of exchange to all legal intents. It was admitted on the trial without objection, on the part of the defendant. The witness (Caldwell) was then offered to prove an absolute promise. It is no answer to say that the original acceptance was conditional. Peterman was a competent witness. The mere circumstance of his holding a power of attorney for the defendant, is certainly not sufficient to exclude him. There was not sufficient evidence of his being a creditor of Dobson to exclude him. The counsel cited Anon. (12 *Mod. 81); 2 Chitty’s Plead, 112, note (y); Carr v. Osborne, (9 East, 378.)
   The opinion of the Court was delivered by

Sergeant, J.

It would seem from what has been stated by the counsel on the argument here, that the real question in dispute between these parties was, whether the condition on which the order was drawn, was performed by the admission of Messrs. Bevan & Porter that they had no claim, or something tantamount, within the true construction of the order. The defendant contended, that his promise to pay was a conditional one, provided Bevan and Porter did not object, and that it did not appear they had waived objection. The plaintiff insisted, that the defendant had received the funds from the drawer of the order, and was liable under his promise. But the record does not contain the whole evidence, or the charge of the Court, and we cannot ascertain how 'far justice was done to the defendant on the merits. We are bound to presume that the Court charged correctly on the law, inasmuch as no error in the charge is brought before us, and if there was injustice in matter of fact, the remedy was by motion for a new trial in the Court below. The only questions presented to us, are on the bill of exception to evidence.

1. The plaintiff filed a declaration for money had and received, and gave in evidence the order. He then offered a witness to prove that the defendant had received certain funds mentioned in the order from the drawers. The evidence seems certainly admissible under the declaration, if it were afterwards followed up ¡ by other evidence to show a promise by the defendant to pay. It¡ was evidence of a consideration for such promise. The objection) to it is, that the order was conditional, and no action lay upon it, unless the plaintiff accompanied the proposed evidence, with a stipulation to produce other proof of a promise and liability. But it is usual to make out a case by steps, and the first stdp may be to show the order ; the next the consideration; and the third the promise, and if conditional, a performance or waiver of it. If the plaintiff claimed under the order, his case would not be made out without the other matters, but in putting in his evidence, it cannot be made an objection, unless the plaintiff had been called on to state the evidence he would accompany the first step with; and that was not done here.

2. Peterman does not on his voire dire show a fixed and certain interest in the money demanded in this suit. He says he was the plaintiff’s attorney, and had a demand of his own against the plaintiff; but states that the plaintiff is able to pay him without this money, though he supposes he should get his portion of it. He had not, however, settled with the plaintiff, and could not tell which was debtor; nor had this money been appropriated PaJ party’s *agent, or attorney, or creditor, may be a witness for him. 1 Yeates, 23; 2.Yeates, 89; 1 Dall. 241; 1 S. & R. 32; 14 S. & R. 178; and in point of interest, in this case, it is too contingent and remote to destroy the competency of the witness, and could only go to his credibility.

3. The bill of lading was admissible to explain the nature of the transaction. It is recognized in the receipt upon it, signed by Wright, Shelton and Co. who were stated by the defendant’s correspondents in their order on the defendant, to have been the persons who placed in their hands the money for payment of freight on the flour, shipped by Bevan and Porter.

Judgment affirmed.

Cited by Counsel, 2 Jones, 341.  