Hubbard, J.
As to the first exception taken by the defendant, that no action can be maintained against him upon his accept =i;;e, it is certainly true that the order declared upon is not a bill of exchange, and that the mere acceptance of it by the defendant did not create a legal liability on his part to pay the amount of it to the plaintiff. Bayley on Bills, (2d Amer. ed.) 15, 16. To enable the plaintiff to recover, he must aver and prove that, at or before the time of the commencement of the action, there was due to him, upon settlement with the drawers of the order, three hundred dollars, or some other amount; and he must further aver and prove, that before the commencement of the suit, a sum of money was due from the defendant out of the last payment to be made by him under his contract with the Baileys. Atkinson v. Manks, 1 Cow. 707. And on examin ing the plaintiff’s declaration, we think the third count is correct enough, in point of form, to sustain the verdict; and if it were_not so, that the money counts are sufficient for the purpose— though it is said they were not specially relied on at the trial, as no bill of particulars was filed agreeably to the usual practice in cases where those counts are depended upon.
In respect to the second exception, that as the Baileys did not finish the contract, the last payment never became due from the defendant, we think this is too narrow a view of the defendant’s undertaking. The agreement of the defendant was, that in case the Baileys failed to complete their work, he would go on and finish the houses, and deduct the cost of their comple tion from the sum of $5337, the stipulated price of the houses ; and it was by no means a condition precedent to a right of action by the plaintiff, that the Baileys should themselves personally complete their contract: But on their failure to do it, the defendant was then substituted to finish the houses, and after deducting his expense in so doing, he would be bound to apply the balance, if any, to the payment of his acceptances in -the [242]*242same manner as he would have done had the Baileys finished the work.
As to the third exception to the learned judge’s charge, who ruled that the orders were to be paid in full in the order they were accepted, until the fund was exhausted, and not, as the defendant contended, that the order holders should bear the loss pro rata, we see no reason for adopting the opinion advanced by the defendant’s counsel, that all the parties either contemplated, when the orders were drawn, that the Baileys would certainly finish the houses, or that all the orders would be paid in full. We perceive no such connexion between these parties , or that the plaintiff knew what holders of orders there were, besides himself, until after the embarrassment of the Baileys. The rule — prior in time, prior in right — is applicable we think to these order holders. In the case of Bryant v. Russell, 23 Pick. 534, a fund was created for the payment of certain enumerated debts, without any intent to give a preference, and in consequence of that, there being eventually a deficiency of assets, it was held that the loss ought to be apportioned upon all the debts pro rata ; applying the rule in equity, that where the common fund proves insufficient, the parties claiming under it shall equally sustain the loss. The cases of Brown v. Allen and Brathwaite v. Brathwaite, cited from 1 Vern. 31, 334, are those where pecuniary legacies were payable at different times, but out of a common fund ; and there the now well known rule of abatement was enforced : Courts of equity having acted on the presumption that the testators, in such cases, supposing they had sufficient estate, intended to make no preferences ; and the abatements are made, because in such circumstances equality is equity. In the case before us, there was no common fund created by the Baileys, for the benefit of the order holders, at one and the same time, and by one and the same act; but as they contracted debts in the building of the houses, they made their orders, from time to time, to secure those debts, and drew them upon the party for whom they were erecting the houses. This created no privity among the order holders.
The fourth exception respects the advance of a part of the [243]*243last payment to the Baileys, without the knowledge of the plaintiff; the judge having excluded the evidence which the defendant offered, tending to prove that such advance was absolutely necessary to enable the Baileys to go on, and that the plaintiff must have supposed such advances would be necessary and would be made. We think the evidence was properly excluded, as no notice of the intended advance had been given to the plaintiff; for the defendant could not safely infer that the plaintiff supposed such advances would be made, after his order was accepted, without reserving a sufficient amount to meet his demand. Besides ; the mistake of the defendant, in supposing that, by malting the advance, the Baileys would be able to go on, ought not to prejudice the plaintiff in his claim. But the defendant should have either withheld the advance or have consulted with the plaintiff and obtained his consent to make it; and he must bear the consequences of not doing so. - We therefore agree with the learned judge, that the evidence thus offered was inadmissible to affect the plaintiff’s rights. We cannot assume that the plaintiff suffered no prejudice by this advance, as the defendant’s counsel has argued ; for the plaintiff, if he had been consulted, might have made terms much more favorable to himself than those which the defendant would now mete out to him in common with others.
The fifth ground of objection to the ruling of the court is founded upon the alleged parol agreement of March 5th 1840, and which objection is urged under different heads. The case presented to us is not without its difficulties, arising from the imperfect manner in which the parties entered into their arrangement, consequent upon the embarrassment of the Baileys. In coming to a decision as to the first head under this exception, we think the charge of the judge is to be taken in connexion with the instructions given under the second and third heads. And though we should rather have said that the sufficiency of the consideration must rest upon the probable benefit or inconvenience to the one party or the other, at the time of entering into the agreement, and would not depend on the manner how it turned out, still wé consider the latter part of the instructions as [244]*244the illustrations of what, in the opinion of the learned judge, would constitute a good consideration for the new agreement : And taking the instructions as a whole, we think there are no such errors as require us to disturb the verdict; the charge on the subject of the new agreement having been, to say the least, sufficiently favorable to the defendant. The position of the defendant’s counsel, that the defendant was to do the work by contract, if the Baileys failed to complete the buildings, and that his agreeing to finish them, by hiring men and procuring materials himself, furnished a good consideration for the alleged new agreement, we think wholly untenable ; being taken upon a construction of the instrument never intended by the parties.
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Hubbard, J.
As to the first exception taken by the defendant, that no action can be maintained against him upon his accept =i;;e, it is certainly true that the order declared upon is not a bill of exchange, and that the mere acceptance of it by the defendant did not create a legal liability on his part to pay the amount of it to the plaintiff. Bayley on Bills, (2d Amer. ed.) 15, 16. To enable the plaintiff to recover, he must aver and prove that, at or before the time of the commencement of the action, there was due to him, upon settlement with the drawers of the order, three hundred dollars, or some other amount; and he must further aver and prove, that before the commencement of the suit, a sum of money was due from the defendant out of the last payment to be made by him under his contract with the Baileys. Atkinson v. Manks, 1 Cow. 707. And on examin ing the plaintiff’s declaration, we think the third count is correct enough, in point of form, to sustain the verdict; and if it were_not so, that the money counts are sufficient for the purpose— though it is said they were not specially relied on at the trial, as no bill of particulars was filed agreeably to the usual practice in cases where those counts are depended upon.
In respect to the second exception, that as the Baileys did not finish the contract, the last payment never became due from the defendant, we think this is too narrow a view of the defendant’s undertaking. The agreement of the defendant was, that in case the Baileys failed to complete their work, he would go on and finish the houses, and deduct the cost of their comple tion from the sum of $5337, the stipulated price of the houses ; and it was by no means a condition precedent to a right of action by the plaintiff, that the Baileys should themselves personally complete their contract: But on their failure to do it, the defendant was then substituted to finish the houses, and after deducting his expense in so doing, he would be bound to apply the balance, if any, to the payment of his acceptances in -the [242]*242same manner as he would have done had the Baileys finished the work.
As to the third exception to the learned judge’s charge, who ruled that the orders were to be paid in full in the order they were accepted, until the fund was exhausted, and not, as the defendant contended, that the order holders should bear the loss pro rata, we see no reason for adopting the opinion advanced by the defendant’s counsel, that all the parties either contemplated, when the orders were drawn, that the Baileys would certainly finish the houses, or that all the orders would be paid in full. We perceive no such connexion between these parties , or that the plaintiff knew what holders of orders there were, besides himself, until after the embarrassment of the Baileys. The rule — prior in time, prior in right — is applicable we think to these order holders. In the case of Bryant v. Russell, 23 Pick. 534, a fund was created for the payment of certain enumerated debts, without any intent to give a preference, and in consequence of that, there being eventually a deficiency of assets, it was held that the loss ought to be apportioned upon all the debts pro rata ; applying the rule in equity, that where the common fund proves insufficient, the parties claiming under it shall equally sustain the loss. The cases of Brown v. Allen and Brathwaite v. Brathwaite, cited from 1 Vern. 31, 334, are those where pecuniary legacies were payable at different times, but out of a common fund ; and there the now well known rule of abatement was enforced : Courts of equity having acted on the presumption that the testators, in such cases, supposing they had sufficient estate, intended to make no preferences ; and the abatements are made, because in such circumstances equality is equity. In the case before us, there was no common fund created by the Baileys, for the benefit of the order holders, at one and the same time, and by one and the same act; but as they contracted debts in the building of the houses, they made their orders, from time to time, to secure those debts, and drew them upon the party for whom they were erecting the houses. This created no privity among the order holders.
The fourth exception respects the advance of a part of the [243]*243last payment to the Baileys, without the knowledge of the plaintiff; the judge having excluded the evidence which the defendant offered, tending to prove that such advance was absolutely necessary to enable the Baileys to go on, and that the plaintiff must have supposed such advances would be necessary and would be made. We think the evidence was properly excluded, as no notice of the intended advance had been given to the plaintiff; for the defendant could not safely infer that the plaintiff supposed such advances would be made, after his order was accepted, without reserving a sufficient amount to meet his demand. Besides ; the mistake of the defendant, in supposing that, by malting the advance, the Baileys would be able to go on, ought not to prejudice the plaintiff in his claim. But the defendant should have either withheld the advance or have consulted with the plaintiff and obtained his consent to make it; and he must bear the consequences of not doing so. - We therefore agree with the learned judge, that the evidence thus offered was inadmissible to affect the plaintiff’s rights. We cannot assume that the plaintiff suffered no prejudice by this advance, as the defendant’s counsel has argued ; for the plaintiff, if he had been consulted, might have made terms much more favorable to himself than those which the defendant would now mete out to him in common with others.
The fifth ground of objection to the ruling of the court is founded upon the alleged parol agreement of March 5th 1840, and which objection is urged under different heads. The case presented to us is not without its difficulties, arising from the imperfect manner in which the parties entered into their arrangement, consequent upon the embarrassment of the Baileys. In coming to a decision as to the first head under this exception, we think the charge of the judge is to be taken in connexion with the instructions given under the second and third heads. And though we should rather have said that the sufficiency of the consideration must rest upon the probable benefit or inconvenience to the one party or the other, at the time of entering into the agreement, and would not depend on the manner how it turned out, still wé consider the latter part of the instructions as [244]*244the illustrations of what, in the opinion of the learned judge, would constitute a good consideration for the new agreement : And taking the instructions as a whole, we think there are no such errors as require us to disturb the verdict; the charge on the subject of the new agreement having been, to say the least, sufficiently favorable to the defendant. The position of the defendant’s counsel, that the defendant was to do the work by contract, if the Baileys failed to complete the buildings, and that his agreeing to finish them, by hiring men and procuring materials himself, furnished a good consideration for the alleged new agreement, we think wholly untenable ; being taken upon a construction of the instrument never intended by the parties. The agreement on the part of the defendant, in case the Baileys were not able to go on, was, that he himself should go on and complete the building by contract, by the rules of work, or otherwise, as he should think best; and the determination on his part to complete them, by hiring men and furnishing materials, was no new undertaking or new agreement, but what was within the scope and intention of the contract with the Baileys, and in fulfilment of it. The jury have by their verdict declared, if they were satisfied with the proof of the alleged agreement, that the defendant sustained no loss and suffered no inconvenience, in completing the buildings himself by hiring men for that purpose ; and that the appointment of the committee was as much for his benefit as for the security of the order holders. We think the agreement set up by the defendant in defence of the action — supposing it to be proved — is one in which an accord without satisfaction will not avail the party relying upon it, and that it falls within the range of those cases where a promise to receive part of a debt instead of the whole has been held unavailing, unless accompanied by a formal release. In this instance, there was neither release nor payment, and consequently no accord and satisfaction.
It has been pressed upon us in the argument, that the court erred in submitting the matter of consideration to the jury ; but n reply to this, we observe that the alleged agreement not being n writing, and the evidence on which it is founded not being [245]*245given in detail, we have not the means to decide whether there was error in this respect or not; and we surely do not feel called upon so far to presume it, as to disturb a verdict founded upon a charge so favorable for the defendant upon the questions presented to the jury for their decision.
Besides ; it often happens that the question is rightfully submitted to a jury, whether a new contract or new parties have been substituted in place of the old. Much necessarily rests on the discretion of a judge, as to the course to be given to a cause in the progress of the trial, and in the manner of presenting it to a jury: And though judges may, and frequently do, differ in their mode of stating a particular case, yet because such differences exist, it does not of course follow that either of the statements is necessarily erroneous..
On the whole, though this case is not free from embarrassments, yet taking into view the circumstances, that the order was accepted with full knowledge of the plaintiff’s claim ; that the advance was made by the defendant on account of the last payment, without the knowledge of the plaintiff; that the jury have passed upon all the facts in relation to the alleged substituted agreement; and that the true construction of the original contract of the defendant with the Baileys required him, after their misfortune, to finish the houses, or otherwise to answer the order of the plaintiff — we are satisfied with the verdict ; and agreeing substantially with the rulings and instructions of the judge who tried the cause in the court below, we think that the several objections of the defendant cannot be sustained, and that there should be judgment on the verdict.
Exceptions overruled.