Opinion
June Term, 1850.
An obligation in these words, "On or before the first day of January next, I promise to pay to Robert S. Burney or order $160 for the hire of a negro by the name of Abram, and the use of two full crops of boxes on Moore's Creek. Witness," etc., is not a conditional obligation.
APPEAL from the Superior Court of Law of BRUNSWICK, at Spring Term, 1850, Settle, J., presiding.
No counsel for plaintiff.
Strange for defendant.
The declaration is in debt on a single bill under seal for $160, and non est factum pleaded. On the trial the instrument appeared to be in these words: "On or before 1 January next, I promise to pay to Robert S. Burney, or order $160 for the hire of a negro by the name of Abram and the use of two full crops of boxes on Moore's Creek. Witness my hand and seal, this 15 ........, 1848. "The defendant thereupon moved for a nonsuit because the bond produced was conditional and only bound the defendant to pay the money, provided the plaintiff let him have the use of the negro and two crops of turpentine boxes, whereas the plaintiff gave no evidence on those points, but declared on the bond as obliging the defendant absolutely to pay the money. But the court refused the motion, and the plaintiff had a verdict and judgment, and the defendant appealed.
It is true, the word "for" may make a (54) condition; and it does so when each party is subsequently to do some act, and, upon the sound construction of the instrument, it is apparent that the act on the part of the party suing ought to precede or concur in point of time with that stipulated by the other party. Many cases were cited in the argument for the defendant; but in all of them the contracts were so expressed as to appear to be executory on both sides, and amount to stipulations for mutual acts in future, which were, at the least, to be concurrent. Cases of that kind, however, have no application to one like the present. If the consideration mentioned in the bond was past, the obligation of the defendant to pay the money was, of course, intended to be absolute. But if it cannot be collected from the instrument (to which alone we are to look for its meaning in this respect) that the defendant had already had the use of the negro and boxes, still there is nothing to show that he was to have them before the day on which he was to pay the money. Suppose the expression in the bond had been "for value," without adding the word "received"; it is plain it would stand indifferent whether the value had been received before or was to be received after the making of the contract. Therefore, it could not be said that the instrument purported to be conditional. But admitting that it could be construed as providing for value to be received, yet that provision could not be deemed a condition to be performed by the plaintiff before he could have a cause of action, since neither the kind of value nor the period of rendering the benefit is specified. Now, it is not stated in this instrument when the hire of the negro was to begin nor for what period it was to continue. We are told at the bar that the phrase, "crops of boxes," means as many pine trees, prepared for making turpentine, as one hand will attend during a season. But, taking that to be so, it cannot be told what years the defendant was to have the boxes, namely, whether in 1848, or whether a crop for one hand in that year and (55) for another in some other year. The words were probably intended merely to show on what transactions between the parties this money was due, namely, those of hiring a particular negro and the rent of certain turpentine boxes, and not to enter into any particulars of such hiring and renting. The case, therefore, falls within the common rule, upon which stipulations are deemed independent when the one party engages, for example, to pay money at a certain day, for which the other party is to do other acts, which may or may not be performed before or at that day.
PER CURIAM. Judgment affirmed.