#### * Edward Tucker *versus*James Maxwell, Jun.

Where the owner of a vessel hound on a voyage had drawn an order in the plaintiff’s favor, payable on the vessel’s return, in part payment for the cargo, and the plaintiff had given him a receipt in full for the goods sold, — it was holden, that he might still recover for the goods, notwithstanding his receipt, the vessel not having returned, and being much out of time, unless the defendant could prove that the plaintiff was to take the risk of the voyage.

The declaration in this case contained four counts: 1. *Quantum valebant*for a quantity of boards, with the fees for surveying and wharfage; 2. *Indebitatus assumpsit*for money laid out and expended : 3. *Indebitatus assumpsit*for the same boards, &c., in an account annexed to the writ. The *fourth*count was upon the following order or bill, *viz:*—

“ *Saco,*February 20, 1812. *Cyrus King,*Esq.: Sir, — On the return of the brig *Cataract*from a voyage to the islands or main, which I have now contemplated, and back to this port again, please to pay to Mr. *Edward Tucker,*or his order, one hundred and eighty-nine dollars and fifty cents, and, when paid according to the tenor of the drawing, place the same to the account of your most obedient, J. *Maxwell,*Jun.” “ *Saco,*20th February, 1812. Accepted to pay according to the within. *C. King.”*The plaintiff avers that “ The usual time for performing the said supposed voyage having long since elapsed, and the said brig *Cataract*not having arrived, the said *James*became liable, and, in consideration thereof, then and there promised the plaintiff to pay him the contents of the said order, according to the tenor thereof; yet, though requested,” &c.

At the trial of the action upon the general issue, before *Thatcher,*J., the plaintiff proved the sale and delivery of the boards mentioned in the account annexed to his writ, amounting, with expenses, to 439 dollars 50 cents ; for which the defendant paid in cash 250 dollars; and for the balance of 189 dollars 50 cents the defendant drew the order declared on; and the plaintiff received the same, giving the defendant a receipt in full of the account. The sum of 189 dollars 50 cents, the amount for which the order was drawn, was all the demand the plaintiff had against the defendant, and the several counts in the declaration had respect to that sum. [ * 144 ] * The brig *Cataract,*soon after the date of the order,

sailed on the contemplated voyage, and touched at one of the *West India*Islands, since leaving which she had not been heard of. The usual time for the performance of such a voyage had elapsed long before the commencement of this action.

The judge who sat in the trial was of opinion, upon this evi *137dence, that the first contract for the boards was discharged by the acceptance of the order; that it was not the intention of the parties that the plaintiff should take the risk of the return of the vessel; but that, after a reasonable time for the performance of the voyage mentioned, the plaintiff was entitled to receive the amount oí the order; and he instructed the jury to return their verdict for the said amount, with interest after such reasonable time had expired. The jury returned their verdict in conformity to the said directions; and the defendant, having filed his exceptions to the said directions, as against law and the evidence in the case, the action stood continued to this term for the consideration of the said exceptions.

*King,*for the defendant.

This was an entire and special contract, and it is to be enforced only according to the terms of it. The condition, on which alone the bill was to be paid, has not happened. It was for this reason that the acceptor has not been called upon ; and the drawer cannot be holden, unless the acceptor is liable. Here is no room for construction ; nor for equitable considerations, since it is to be presumed that the price of the article was proportioned to the risk of a final loss.

As the plaintiff has no cause of action on the bill, so neither can he recover on his original account. This is an inland bill of exchange as between these parties, (1) and must be allowed to have the effect, which a promissory note has, of discharging the simple „ con tract in consideration of which it was given. (2)

*Holmes,*for the plaintiff.

No contingency or risk was contemplated to be put upon the plaintiff in this negotiation.

*The actual price charged for the boards proves this j a part of which were paid for in cash at the same price.

The object in mentioning the return of the vessel at the time of payment was to give the defendant a credit, until he would prob ably be in cash from the proceeds.

But if this order was, in fact, payable only on the contingency ot the vessel’s return, then it was no bill of exchange, (3) and so is not within the rule relied on by the defendant of discharging the previous contract; and the plaintiff is still entitled to recover upon his original charge of the boards.

(1)

*Chitty,*32.-7 *D. & E.*243.

(2)

5 *Mass. Rep.*299.

(3)

*Chitty,*174.

*Per Curiam.*

Considering the direction of the judge to the jury by itself, we are not satisfied with it. Although it is not to be inferred, from the writing, that the plaintiff was to assume the risk of the voyage, yet the money was not to be paid upon this ordei until the return of the vessel. It was a mere authority to the *138drawee to pay the money upon the happening of that event. It is not drawn for value received. But when we look further into the case, we find the order was given in part payment for a quantity of boards sold by the plaintiff to the defendant, the remainder of the bill having been satisfied in money. This is sufficient evidence of value received; but still we think this not such a bill of exchange as gave a recurrence to the drawer, but on the terms of the draft itself, that is, on the return of the vessel from the voyage then in contemplation, (a)

We do not think, as the evidence is, that there is sufficient proof that the plaintiff was to depend in all events for the payment of this sum on the vessel’s return. It was probably to fix the length of the credit he was to give, that the money was make payable at that time. Then the plaintiff must have his remedy against *Maxwell*on his original demand, notwithstanding his receipt on the bill. That receipt is not a release, nor conclusive upon the plaintiff. Unless, then, the defendant can show that it is agreeable to a general course of trade in *Saco*for the party selling lumber or other cargo for a voyage, and giving a credit for the voyage, to run the [ * 146 ] risk, and that in the present case such * was the probable understanding of the parties, to be evidenced by the price of the articles sold, we are of opinion that the plaintiff is entitled to a verdict on the other counts. Such evidence might have been introduced at the trial if in the defendant’s power. We shall not therefore set aside the verdict, but enter judgment upon it, leaving the defendant to his review, if he shall be advised to pursue it. He has accordingly leave to retract his waiver of a right to ^review, stipulated when the cause was saved for out consideration.

*Judgment on the verdict.*

(a)

 A bill or note must purport that the money mentioned in it shall be payable absolutely, and at all events; if it purport to make the payment depend upon any uncertainty or contingency, the instrument is not a bill or note; and if it be not a bill or note *ao initia,*no subsequent event can make it so. — *Bayley on Bills,*5th ed, c. 1, § 6, p. 16.