
    Benj. J. Wilson, plaintiff in error, vs. James J. Morrison, defendant in error.
    An action was brought on an instrument in the following words; “$177. On or by the 25th Dec., 1855, I promise to pay B. J. Wilson, or bearer, one huudred and seventy-seven dollars, with interest from date. This 19th June, 1S53, for value received ; said note to be paid out of a certain note, I have this day traded to said Morrison, on L. B. Perryman, when collected, due at the same time as the above. J. J. Morrison.” There was no evidence that the Perryman note had been collected, or that it might have been collected, by the use of due diligence.
    
      Held, That a nonsuit was right.
    Complaint, in Polk Superior Court. Nonsuit by Judge Hammond, April Term, 1859.
    This was an action by Benjamin J. Wilson, against James J. Morrison, on the following written instrument, which plaintiff sued on and describod in his petition as a promissory note, viz:
    
      '“$177. On or by the 25th December, 1S55,1 promise to pay B. J. Wilson or bearer, one hundred .and seventy-seven dollars, with interest from date. This 19th Dec% 1853, for value received; said note to be paid out of a certain note I have this day traded to said Morrison, on L. B. Perryman, when collected, due at the same time as the above.
    (Signed) J. J. MORRISON.”
    Plaintiff tendered and read in evidence the above instrument and closed; and counsel for defendant moved for a nonsuit, on the ground that the paper sued on was not a promissory note. The Court sustained the motion and awarded a nonsuit, and plaintiff excepted.
    Fielder & Brotles, for plaintiff in error.
    Chisolm & Waddell, contra.
    
   — Benning J.

By the Court.

delivering the opinion.

Did the Court err in granting the nonsuit ? We think not.

The instrument declared on, is so absurd as it stands, that we may assume it to contain a mista*ke. It is probable, that it was Wilson who drafted the instrument, and, that he, by inadvertence, forgetting that he was writing for Morrison, used the words, a certain note, I have this day traded to said Morrison,” instead of the words, a certain note, the said B. J. Wilson has traded to me.

Assuming this supposition to be true, did the Court err, in granting the nonsuit?

What, on this supposition, does the instrument mean ? This, we think: That Morrison promised to pay Wilson $177 by the 25th day of December, 1855, out of a note, on Perry-man, “ traded” by Wilson to Morrison, provided, the note should, by that time, be collected, but if it should not be, then to pay him the $177 when the note should be collected and not before. The promise was a promise to pay out of the proceeds of the note, and out of them only. This we think, the most natural and obvious meaning of the instrasment. Therefore, in the absence of aliunde evidence of a different meaning, we must say, that this is the meaning.

Taking this, as the meaning, it is obvious, that the nonsuit was right, for there was no proof, that thePerryman note had been collected, or that it might, by the use of ordinary diligence, have been collected.

We think then that the nonsuit was right

Judgment affirmed.  