
    Sylvanus Hunton, v. Ingraham & Webb.
    When a factor accepts a planter’s order, payable “when in funds,” it amounts to a promise to pay out of the first funds of the planter which shall come into his hands; and he cannot defend himself against an action on the acceptance, by showing that he has never been in funds over and above the amount of a debt due him by the planter, at the time of the acceptance.
    It is no longer an open question, whether a conditional acceptance be binding. When the condition is performed, the acceptance becomes absolute.
    Tried before the Recorder, in the City Court of Charleston, July Term, 1846.
    This was a summary process, brought to recover a balance alleged to be due to plaintiff upon an acceptance by defendant, of a certain draft, drawn on them by one R. R. Spann, in favor of plaintiff. The draft was as follows:—“Messrs Ingraham & Webb will please pay or take up a note given by me' to Dr. Sylvanus Hunton, for one hundred and seventeen dollars, dated August 16,1841; also pay him seven dollars, seventy-five cents, and oblige yours respectfully. *
    
      July 3d, 1842. [Signed] R. R. Siww.
    The defendant’s acceptance, written on the above draft, was in the following words:—“15th July, 1842, accepted: payable wheu in funds.” [Signed] Ingraiiam & Webb.
    The note of R. R. Spann, referred to in the above, was as follows:
    “On the first day of October next, I promise ro pay Dr. Syl-vanus Hunton, or bearer, one hundred and seventeen dollars, for value received, with interest from date:”
    
      August 19, 1841. [Signed] R. R. Sbann.
    
      On the note there was endorsed as follows:—“August 9th, 1844, Received seventy-five dollars.”
    
      On the draft, endorsed, “Received seven dollars and seventy-five cents on account, of the within, of I. <⅛ W., 17th Jan. 1843.” #7 75. [Signed] Sylvanus Hunton.
    The following written testimony was admitted by consent of plaintiff and defendants’ counsel.
    
      Mr. Vernon—Book keeper of the defendant, says, that the acceptance is in the hand writing of Mr. Ingraham; that Ingra-ham & Wrebb were the factors of Spann, in 1842, and have been ever since; they have sold his cotton each year; that the ‘proceeds of sale have been all consumed in purchases for Spann's plantation; that in 1842, Spann owed Ingraham & Webb $2,400, for which he gave a confession of judgment entered up in Sumter District. Nothing has been credited ca this judgment. The receipts from Spann, since 1842, have been since then sufficient to discharge his indebtedness at that time. He now owes defendant about $2,700.”
    It was conceded by plaintiff’s counsel, and agreed to be taken as part of the evidence in this case, that when a factor receives cotton from his employers, it is received upon the understanding, that the factor is to make advances for his plantation expenses. The judgment referred to, was confessed before the date of defendants’ acceptance.
    After hearing argument, his Honor, the Recorder, decreed for the defendants.
    The plaintiff appealed.
    1st. Because the conditional acceptance by the defendants, of the bill in favor of the plaintiff, became absolute upon the receipt of funds arising from the sale of the drawers cotton.
    2d. Because the payment of a part of said bill, by the defendants, is an admission of their being in funds, and of their liability as acceptors thereof.
    Tupper, for the motion.
    Cited, Cohen v. Hart, 2 Hill L. R., 304; to show that a person promising to pay the debt of another, cannot set up a debt due to himself, as a prior lien on funds coming to his hands. Said that, from the payment of the $7 75, the judgment could notbe set up. That as soon as the proceeds of the crop came to hand, the acceptance became absolute. That the furnishing of plantation supplies is not a custom, but a matter of private arrangement; and that, if the factors had paid themselves instead of furnishing these supplies, they would not have been liable, in action, to furnish such supplies under a custom.
    Porter, contra.
    
    Contended, that the only money liable for the acceptance, is that which the drawer would, himself, be entitled to receive, and that his clients had never been in possession of such funds. That this draft was without consideration, and for a pre-existing debt, and cited the case of the Ontario Bank v. Worthington, 12 Wend., 594. He said also, that in the case from 2 Hill, 304, there was a promise positive, which rendered it inapplicable to support the appellant’s position.
   Evans J.

delivered the opinion of the Court.

The only question made in this case, is that which arises on the acceptance; some others might arise out of the facts as stated, but this alone will be considered. It is no longer an open question, whether a conditional acceptance be binding, when the condition is performed, the acceptance becomes absolute. The condition in this case was to pay “when in funds.” This means, they will pay the order when funds belonging to Spann shall come into their hands, or in other words, it amounts to a promise to pay the order out of the first funds of Spann’s, which shall come into their hands. The proof, that they had received and sold Spann’s cotton, would prima facie make them liable. But the defendants contend they are not liable on two grounds: 1. That Spann owed them at the time, a large debt which has never been paid, therefore they have had no funds of Spann in their hands. But this, it seems to me, is adding another condition to the acceptance, and the acceptance would then mean they would pay the order when they had funds in hand, over and above the amount of their debt, which would certainly be something beyond what is stated in the acceptance, and something beyond what is implied by law; such an addition to the acceptance would make it entirely illusory and deceptive, and I will not do the defendants the injustice to suppose they intended any such thing. But it appears from the evidence, that funds to a greater amount, than the debt due to them at the time of the acceptance, have come into their hands from the sales of cotton; so that this defence, even if it could be sustained, cannot avail them, unless their second ground of defence can be sustained that arises out of the admission made by plaintiff’s attorney, that the cotton is sent to the factor, under the implied understanding that he is to advance for plantation expenses; and to the extent of these advances, the factor has a right to retain, or in other words, he has something like a lien on the cotton before it is sold. Now, there is some reason in this to a certain extent, for unless he had made the advancements, the cotton could not have been produced or sent to market for sale. This was the argument, and to the extent to which it goes, it is reasonable enough; the expenses of producing the crop, like the freight, are to be first paid, and only the surplus of the money belongs to the planter. But the usage and the reasons of it go no further; what are plantation expenses in this sense, the evidence reported does not enable us to judge. I can hardly suppose the whole crop was consumed in this way. No doubt family supplies and many other things, not strictly plantation expenses, will be found in the account current, when produced, and these I do not suppose can come within the usage, admitted to exist by the plaintiff’s attorney. That the facts may be more fully ascertained, a new trial is ordered.

Richakdson J., O’Neall J., Wardlaw J., and Withers J., concurred.

Frost J. concurred in the result.  