#### IREDELL WILLIAMS vs. ALFRED THOMPSON.

A agrees with B, that if B will furnish him with evidence in a suit to establish a particular fact, he will pay him $100. B furnishes a deposition 'proving the desired fact, but the commission under which it was taken was not returned, so that the deposition was useless: held that B could not recover on this contract. • ■

This was an action of assumpsit, tried before Person, Judge, at the Spring Term, 1856, of the Superior Court of Nash County.

The plaintiff declared upon a special contract contained in the following letter from the defendant to him:

“Tosnot Depot, N. C., July 14th, 1848.

Dear Sir:—I wish you to procure me the testimony of Allen T. 'Williams’ marriage, in the State of Tennessee, previous to the year 1827. The charge, for procuring this testimony, of $100,1 think is high, and so my lawyers think, but they advise me to give it, and I hereby promise to do so whenever such testimony is forwarded. The children have nothing in hand, and I shall not be in funds until we bring Flowers’ administrator to an account. This evidence will do it. I believe I could get along without it, but this will remove all doubt. Write me the time and place where you will take the deposition, in order that I may give notice to the adverse party. As soon as I get your letter I will give the notice, and send you a copy and a commission with the form of the questions to be asked.”

The Clerk of the Court proved that he sent a commission to the plaintiff", and afterwards a deposition came to his office, but the commission was not returned with it. This deposition was read, and it contained the evidence which the plaintiff was requested to procure. The Clerk further stated, that soon afeer it came, the defendant called at his office, and said it was the very evidence he wanted; he had promised to pay "Williams $100 ; he thought it was high, but he would be as good as his word if the suit was decided in his favor. It was also *364proved that when the plaintiff was informed that the deposition was defective for want of the commission, and was requested to supply it, he refused to do so unless $50 more was paid him. The suit was afterwards compromised.

Upon these facts, the defendant contended that the plaintiff could not recover, because the commission was not returned with the deposition, and the plaintiff, therefore, had not performed his contract. The question was reserved by the Court with the consent of both parties, and it was agreed that the jury should find their verdict for the plaintiff, subject to the opinion of the Court upon the question reserved. If upon that, the Court should be with the plaintiff, judgment was to be given for him; but if with the defendant, the verdict was to beset aside and judgment of nonsuit given. The Court, being of opinion with the defendant, set aside the verdict, and nonsuited the plaintiff, and from this judgment he took an appeal to the Supreme Court.

Lewis and Winston, Sr., for the plaintiff.

Moore, for the defendant.

Nasu, O. J.

The contract upon which the action is brought is contained in a letter written by the defendant to the plaintiff, and which is made a part of the case. In it the defendant promises to pay the plaintiff one hundred dollars, upon condition he will furnish him with evidence, that Allen J. Williams was married in Tennessee before the year 1821. In the letter the plaintiff is directed to let the defendant know the time when the deposition was taken in Tennessee, that he might give the necessary notice, and he would send him a commission. The deposition was taken and returned to the proper Court, but no commission accompanied it. The necessary evidence was contained in it. The suit in which it was to be used was subsequently compromised. From the case we gather, that upon the discovery that the deposition, in its then state, could not be used, the plaintiff was requested by the defendant to go on, and complete the *365evidence; this he refused to do unless the defendant would give him fifty dollars more, which was refused. The furnishing the required evidence by the plaintiff, was a condition precedent, without the performance of which no right of action accrued to him. The declaration must necessarily aver it, and the evidence must prove it. The evidence was not furnished by the plaintiff. The deposition without the commission was not admissible as evidence, and was entirely useless to the defendant; for, it was the warrant to the magistrate to act in the matter, and the plaintiff, when apprised of the defect, and requested to complete his contract, refused to do so, except upon an additional compensation; this was an abandonment of his original agreement. The action is not brought on the second promise as alleged by the plaintiff—if any such promise was made. There is no error, and the judgment is affirmed.

Per Curiam.

Judgment affirmed.