#### LEWIS WATKINS vs. JAMES W. JAMES.

Where B agreed to receive tlie draft of a merchant who had bought A’s tobacco, and to credit a bond which he (B) held on A, when the money was received, but, without any fault of B, the merchant refused to give the draft, and two months afterwards became insolvent, Held, that it was error in the Judge below to leave the enquiry to the jury, whether he (B) Was bound to procure the draft and credit the bond, there being no evidence before them to raise that question.

This was an action of assumpsit tried before his Honor, Judge Caldwell, at the Fall Term, 1855, of Caswell Superior Court. Plea, general issue.

The plaintiff declared for the price of a crop of tobacco sold in 1852; also on the common counts. He also declared, on a special count, for a breach of contract.

George Williamson testified, that in the summer ofl852, the *196defendant stated to him that plaintiff owed him a bond for $1800, for a tract of land which he had sold to-him, and that he wished to get his (plaintiff’s) tobacco crop, and to have the jw'ice credited on the bond; and having understood that the plaintiff also owed him (witness) a debt, he wished, him, to consent to take plaintiff’s wheat towards his (witness’) debt, and let the tobacco go as a credit on the bond, to which he assented.

Hem.try A. Hiohmond testified that he hauled the crop in question to Danville, for plaintiff, and delivered it to P. L. Watkins & Son, for which he took- several receipts from one Hudson, their agent. He stated further, that at the October term, of Caswell Court, at the- request of the defendant, he carried these receipts to the court-house, and delivered them to the plaintiff, who immediately carried them, to the defendant, but did not see him give them to him.

William Hudson (whose deposition was read) stated that he acted as the agent of P. L. Watkins & Son, merchants at Danville, in purchasing the crop of tobacco in question from the plaintiff, in 1852; that the defendant was present at the time of this trade, and he bought from him also Ms crop of tobacco. At the instance and request of the witness, it was agreed amongst the three, that at the October term next ensuing of Caswell Court, P. L. Watkins should give the defendant a draft, payable four months after date, for the price of both (plaintiff’s and defendant’s) drops, and “that any amount which might be paid to defendant on Lewis Watkins’ account, should be placed to the credit of his bond then held by Mr. James for the land.” Watkins & Son did not give the draft as agreed, excusing themselves from so doing by saying some of the tobacco they had got from defendant was wet when it was delivered, and insisting upon a deduction from the price on that account. He further stated he was unable to effect a settlement of the difficulty as to Mr. James’ tobacco, and, therefore, preferred not giving him a draft for the plaintiff’s tobacco alone. To certain questions asked by the defendant, -he stated that he heard no agreement on the part of the defendant to take P. L. Watkins & Son “for the debt.” *197He further said that defendant had not received any thing for his tobacco.

It was proved that P. L. Watkins &'Son became insolvent about Christmas in that year. There was evidence tending to show that in February, 1853, the defendant was in possession of the receipts which had been taken for 'the tobacco by the witness Richmond. It was proved further, that, before this suit was brought, the contract concerning the land was rescinded. The plaintiff surrendered his claim on the land, and the defendant the $1,800 bond. The witness who spoke of this rescission said that nothing, was then said by either party about the tobacco. The defendant offered no evidence.

For the plaintiff it was urged : 1st. That as soon as the tobacco was delivered in Danville to Watkins & Son, he was entitled to a credit on his bond.

2nd. If the first proposition was not sustained, it Was insisted that it was the duty of the defendant to procure the draft and collect the money, and having failed to do so when he might have, done it, he made the loss his own.

3rd. It was insisted that the defendant, having become collecting agent for the plaintiff, had made himself liable to damages by his laches.

The defendant’s counsel admitted the contract as proved by Hudson, and, as that was certain in its terms, insisted it was the duty of the Court to declare its effect. They asked Ms Honor to instruct the jury that, according'to that contract, the defendant was not liable; or that, if liable at all, it was only for nominal damages for negligence in failing to collect the money.

“ His Honor declined charging as moved by the defendant’s counsel; because in the judgment of the Court, taking the whole testimony into consideration, the case assumed more than one aspect. The Court charged that, if the jury should believe that the defendant was to take the draft on Watkins & Son, collect it, and apply the proceeds to the debt in question, or if defendant was to collect the draft and failed to do so while the Watkins’ were solvent, that he would be liable for *198tlie amount of the tobacco.” • .The Court also charged “ that if the contract was that the defendant was only to receive the proceeds of the draft on Watkins & Son, and apply the same to the said debt, in such case he would not be liable.” Defendant excepted to these instructions.

Verdict for the plaintiff. Judgment and appeal.

Kerr and Moreheacl, for plaintiff.

No counsel for defendant.

Battle, J.

W e differ from his Honor in the opinion which he expressed, that, in a certain view presented by the testimony, the defendant was liable to the plaintiff’s action for the price of his tobacco. The contract between- the parties, as proved by the witness Hudson, was, that the defendant agreed to take a draft instead of money from P. L. Watkins & Son, of Danville, Va., to whom the plaintiff had delivered his tobacco, and give the plaintiff credit for it on a bond which he, the defendant, held against him as the price of a certain tract of land theretofore sold to him. Had the draft been delivered to, and received by, the defendant, then, we think, the defendant might have been liable for not collecting the money before P. L. Watkins & Son became insolvent. But he did not promise that he would proawre the draft, which, if he had, would have been a very different thing from an agreement merely to receive it. In the latter case, it was the duty of the plaintiff to see that the draft was delivered to him; for until then his responsibility for it did not commence: nor can it be said it was the defendant’s fault that the draft was not handed to him. The excuse for the omission to do so, given by the agent of P. L. Watkins & Son, was not on account of any agreement made by the defendant to make, the payment of the plaintiff’s tobacco dependant on that of his own. The excuse was a frivolous one, not at all creditable to those who made it; but its effect must fall on the plaintiff, who was bound to procure the draft, and not on the defendant who was only bound to receive it, Such having been the contract between *199the parties, it was not varied by the defendant, in calling for the tobacco receipts, as he might very well have wished to see" them, to know how much he would be entitled to receive on them either in money or in a draft.

The view which we have taken of this case seems to be sustained by the fact that, when the parties rescinded the contract for the sale of the land, and the defendant returned to the plaintiff his bond, and repaid what had been advanced upon it, nothing was said by either of them about the tobacco. Thinking, as we do, that his Honor submitted it to the jury to find a contract between the parties, which there was no evidence to establish, we must pronounce the judgment to be erroneous, and grant a renirre de novo.

Per Curiam.

Judgment reversed.