By the Court,
Beardsley, Justice.
The defendant had purchased of Simons and Taft, at prices agreed upon between them, a quantity of lumber, which remained in his possession and unsold. The quantity is not stated. It does not appear what this lumber would amount to at the prices [335]*335stipulated, nor when, by the contract between them, payment was to be made; but it does appear that the defendant had made payments and advances, and incurred responsibilities for Simons and Taft, to the amount of six thousand nine hundred and fifty-eight dollars and thirty-six cents. This, as far as the pleadings disclose, was the state of things between the defendant and Simons and Taft on the 21st March, 1843.
Simons and Taft had previously drawn four bills of exchange on the defendant, which in the aggregate amounted to four thousand nine hundred and eighty-five dollars and thirty-six cents. One of these bills was in favor of the plaintiffs, and the others in favor of one of the plaintiffs and his partner, Rockwell, and they were all payable in July and August, 1843. The bill payable to the plaintiffs was accepted by the defendant in writing, as follows: “ accepted according to contract dated March 21, 1843,” and upon this acceptance the present action was brought. The contract refered to in the acceptance is set out in the declaration. It is between the defendant of the first part, and the plaintiffs and said Rockwell of the second part. It recites that the defendant had in his possession a quantity of lumber, purchased by him of Simons and Taft, at prices agreed upon between them, and which would leave a sum of money to be paid to Simons and Taft; that the parties of the second part held the several bills of exchange already mentioned; that the defendant had made payments and advances and incurred responsibilities, for the benefit of Simons and Taft, to the amount herein before stated; and then follows the engagement of the defendant, which was “ that after paying and indemnifying himself for all payments, advances or responsibilities made or incurred by him for the benefit of said Simons and Taft,” he would pay to the parties of the second part the amount of said bills, when the said lumber should be sold and the proceeds realized by him, and that he would make sale of said lumber and realize the proceeds with all due diligence; but it was expressly declared that the defendant was, at all events, first to be paid and indemnified for the payments, advances and responsibilities aforesaid, [336]*336before any payments were to be made to the parties of the second part.
A consideration for the acceptance of a bill of exchange is, ordinarily, to be implied and need not be alleged or proved, but an acceptance may be made in such terms as to show what the consideration was, if any existed, or that the undertaking was wholly gratuitous. This acceptance was qualified and conditional. It was not an engagement to pay at the time specified in the bill; nor absolutely to pay at any time; but it was an acceptance according to the provisions of a particular contract. We must therefore resort to that contract to ascertain what the defendant’s engagement was; to learn the time of payment, if .one is therein specified and fixed, or the contingency which was to fix the time and the extent of the acceptor’s liability. This contract may show what was the assumed consideration for the acceptance, and exclude the presumption of any other than such as is expressed; and in the end it may be seen that no consideration, in fact, existed for the engagement.
In terms, the bill in suit was payable on the first day of July, 1843, but by the acceptance it was not to be paid by the defendant until the lumber, already mentioned, had been sold, and the proceeds thereof realized by him. This is plain enough; the defendant certainly was not bound to make payment until he had received the proceeds of that lumber.
But he was not bound, absolutely, to pay, when that occurred. I grant that taking the mere words of the contract, and looking no further, the engagement of the defendant was to pay when the lumber should be sold and the proceeds realized by him. One clause of the contract is in these words: “ the said Lawrence will pay to the said parties of the second part the amount of the above mentioned drafts when the lumber received by him shall be sold and the proceeds realized by him.” But it would be most unreasonable to disconnect this clause from other parts of the contract, and take these words in their strict literal import. As far as it can be done consistently with the terms of the contract, it should receive a reasonable construction, avoiding what is [337]*337absurd and improbable. Simons and Taft probably intended to draw for the whole or a part of what they supposed would be their due, and the defendant, it is but reasonable to conclude, designed to limit his liability accordingly. How far he may have been completely successful is a different question and is not free from difficulty, but that he has to a certain extent succeeded in this purpose, can not, I think, be seriously doubted.
Although the whole of the lumber may have been sold and the proceeds thereof realized by the defendant, he is not bound to pay any thing, as acceptor, if the amount so received is insufficient to indemnify him for payments, advances and responsibilities for the benefit of Simons & Taft, as is specified in the contract. This is carefully guarded against, for the contract declares, that the defendant “ is at all events to be first paid and indemnified for all advances before mentioned, before any payments are to be made to the said parties of the second part.” If the proceeds therefore fall short of the sum required for the defendant’s indemnity, the contingency on which he was to become liable as acceptor has not occurred, and no right of action exists against him.
But if the avails of the lumber should exceed the amount of said advances, and still fall short of the full amount of bills drawn by Simons and Taft, and thus specially accepted by the defendant, a question would then arise whether the defendant was bound to pay such bills in full, or only to the extent of the balance in his hands. This question does not arise on the present pleadings, and I shall leave it to be determined when the facts .make it necessary to do so.
In the view which I take of this acceptance it becomes necessary to determine the prices at which the lumber is to be estimated in ascertaining the amount of the proceeds thereof received by the defendant.
The lumber had been sold to the defendant at prices agreed, but the time when he was to pay for it is not shown, nor are the prices specified. It was his own property, in his own possession; and between him and Simons and Taft, the prices agreed upon between them were the measure of [338]*338his liability. But other persons became parties in interest, and so far as respects the time of payment, the defendant agreed with the plaintiffs and Rockwell, that when he should have made sale of the lumber and received the avails thereof he would make payment to them. This event was sufficiently , certain, and fixed the period which was to determine the defendant’s liability. But there is nothing in the- contract made by the defendant with the plaintiffs .and Rockwell, which changed the prices he was to pay for the lumber.
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By the Court,
Beardsley, Justice.
The defendant had purchased of Simons and Taft, at prices agreed upon between them, a quantity of lumber, which remained in his possession and unsold. The quantity is not stated. It does not appear what this lumber would amount to at the prices [335]*335stipulated, nor when, by the contract between them, payment was to be made; but it does appear that the defendant had made payments and advances, and incurred responsibilities for Simons and Taft, to the amount of six thousand nine hundred and fifty-eight dollars and thirty-six cents. This, as far as the pleadings disclose, was the state of things between the defendant and Simons and Taft on the 21st March, 1843.
Simons and Taft had previously drawn four bills of exchange on the defendant, which in the aggregate amounted to four thousand nine hundred and eighty-five dollars and thirty-six cents. One of these bills was in favor of the plaintiffs, and the others in favor of one of the plaintiffs and his partner, Rockwell, and they were all payable in July and August, 1843. The bill payable to the plaintiffs was accepted by the defendant in writing, as follows: “ accepted according to contract dated March 21, 1843,” and upon this acceptance the present action was brought. The contract refered to in the acceptance is set out in the declaration. It is between the defendant of the first part, and the plaintiffs and said Rockwell of the second part. It recites that the defendant had in his possession a quantity of lumber, purchased by him of Simons and Taft, at prices agreed upon between them, and which would leave a sum of money to be paid to Simons and Taft; that the parties of the second part held the several bills of exchange already mentioned; that the defendant had made payments and advances and incurred responsibilities, for the benefit of Simons and Taft, to the amount herein before stated; and then follows the engagement of the defendant, which was “ that after paying and indemnifying himself for all payments, advances or responsibilities made or incurred by him for the benefit of said Simons and Taft,” he would pay to the parties of the second part the amount of said bills, when the said lumber should be sold and the proceeds realized by him, and that he would make sale of said lumber and realize the proceeds with all due diligence; but it was expressly declared that the defendant was, at all events, first to be paid and indemnified for the payments, advances and responsibilities aforesaid, [336]*336before any payments were to be made to the parties of the second part.
A consideration for the acceptance of a bill of exchange is, ordinarily, to be implied and need not be alleged or proved, but an acceptance may be made in such terms as to show what the consideration was, if any existed, or that the undertaking was wholly gratuitous. This acceptance was qualified and conditional. It was not an engagement to pay at the time specified in the bill; nor absolutely to pay at any time; but it was an acceptance according to the provisions of a particular contract. We must therefore resort to that contract to ascertain what the defendant’s engagement was; to learn the time of payment, if .one is therein specified and fixed, or the contingency which was to fix the time and the extent of the acceptor’s liability. This contract may show what was the assumed consideration for the acceptance, and exclude the presumption of any other than such as is expressed; and in the end it may be seen that no consideration, in fact, existed for the engagement.
In terms, the bill in suit was payable on the first day of July, 1843, but by the acceptance it was not to be paid by the defendant until the lumber, already mentioned, had been sold, and the proceeds thereof realized by him. This is plain enough; the defendant certainly was not bound to make payment until he had received the proceeds of that lumber.
But he was not bound, absolutely, to pay, when that occurred. I grant that taking the mere words of the contract, and looking no further, the engagement of the defendant was to pay when the lumber should be sold and the proceeds realized by him. One clause of the contract is in these words: “ the said Lawrence will pay to the said parties of the second part the amount of the above mentioned drafts when the lumber received by him shall be sold and the proceeds realized by him.” But it would be most unreasonable to disconnect this clause from other parts of the contract, and take these words in their strict literal import. As far as it can be done consistently with the terms of the contract, it should receive a reasonable construction, avoiding what is [337]*337absurd and improbable. Simons and Taft probably intended to draw for the whole or a part of what they supposed would be their due, and the defendant, it is but reasonable to conclude, designed to limit his liability accordingly. How far he may have been completely successful is a different question and is not free from difficulty, but that he has to a certain extent succeeded in this purpose, can not, I think, be seriously doubted.
Although the whole of the lumber may have been sold and the proceeds thereof realized by the defendant, he is not bound to pay any thing, as acceptor, if the amount so received is insufficient to indemnify him for payments, advances and responsibilities for the benefit of Simons & Taft, as is specified in the contract. This is carefully guarded against, for the contract declares, that the defendant “ is at all events to be first paid and indemnified for all advances before mentioned, before any payments are to be made to the said parties of the second part.” If the proceeds therefore fall short of the sum required for the defendant’s indemnity, the contingency on which he was to become liable as acceptor has not occurred, and no right of action exists against him.
But if the avails of the lumber should exceed the amount of said advances, and still fall short of the full amount of bills drawn by Simons and Taft, and thus specially accepted by the defendant, a question would then arise whether the defendant was bound to pay such bills in full, or only to the extent of the balance in his hands. This question does not arise on the present pleadings, and I shall leave it to be determined when the facts .make it necessary to do so.
In the view which I take of this acceptance it becomes necessary to determine the prices at which the lumber is to be estimated in ascertaining the amount of the proceeds thereof received by the defendant.
The lumber had been sold to the defendant at prices agreed, but the time when he was to pay for it is not shown, nor are the prices specified. It was his own property, in his own possession; and between him and Simons and Taft, the prices agreed upon between them were the measure of [338]*338his liability. But other persons became parties in interest, and so far as respects the time of payment, the defendant agreed with the plaintiffs and Rockwell, that when he should have made sale of the lumber and received the avails thereof he would make payment to them. This event was sufficiently , certain, and fixed the period which was to determine the defendant’s liability. But there is nothing in the- contract made by the defendant with the plaintiffs .and Rockwell, which changed the prices he was to pay for the lumber. The prices at which the lumber had been purchased of Simons and Taft must therefore determine the extent of the defendant’s liability as acceptor, so far as the amount thereof is a material fact. And in order to recover, the plaintiffs must not only show that the lumber has been sold and the proceeds realized by the defendant, but that these proceeds, at the prices so agreed upon, at the least, exceed the amount of the previous payments, advances and responsibilities of the defendant for the benefit of Simons and Taft.
The contract refered to in the acceptance not only determines the character of the latter engagement, but it also shows the consideration, as far as any exists, to uphold that promise. To the extent of his liability to Simons and Taft, over and above prior payments, advances and responsibilities on their account, there “was an ample consideration for the defendant’s acceptance, but beyond this none appears to have existed. If the acceptance therefore could be construed ag an absolute engagement to pay the bills, it would be a nudum pactum, if we assume, what is alleged to be true, that the proceeds of the lumber fell short of the amount required to indemnify the defendant for his previous payments, advances and responsibilities.
If these views are correct they decide the questions arising on these demurrers.
Th & first count in- the declaration alleges that the defendant had disposed of all the lumber and realized the proceeds thereof, and on that ground alone seeks to charge him as acceptor. It does not allege the amount of such proceeds, or that they exceeded, or were equal to the previous payments, advances and responsibilities of the defendant for [339]*339the benefit of Simons & Taft. This count is bad,• it shows no right of action against the defendant; and, without regard to the pleas interposed, the defendant is entitled to judgment on the demurrers to those pleas, because the count is vicious.
The second count in the declaration is of another descripT tian. It not only alleges a sale of the lumber and that the defendant had realized the proceeds thereof, but that said lumber, at the prices agreed upon therefor between the defendant and Simons and Taft, was sufficient to pay and indemnify the defendant for all his payments, advances and responsibilities for the benefit of Simons & Taft, as is mentioned in said contract, and leave a balance or surplus sufficient to pay and satisfy the several bills of exchange mentioned in said contract.
This count is good, and if the facts are as alleged the plaintiffs must recover.
The third plea, which is to this count, is founded on a wrong principle. It alleges as a bar, “ that the proceeds of the sales of said lumber were not of sufficient amount to pay and indemnify the defendant for his payments, advances and responsibilities for the benefit of Simons and Taft, as is stated in said contract.
This oilers an issue on am immaterial fact. It was of no possible consequence what might be the amount of the proceeds of the lumber, as sold by the defendant. He may have sold it at half its value, or at a mere nominal price, but that would not touch the point of his liability to Simons and Taft or as acceptor of this bill. The count alleges that the lumber, at the prices agreed, was sufficient to indemnify the defendant and pay the several bills accepted by him, and the plea wholly fails to meet this substantial ground for a recovery.
The sixth plea is also to the second count. It alleges that the proceeds of the lumber at the prices agreed upon between the defendant and said Simons & Taft had not been, and were not of sufficient amount to indemnify the defendant for his payments, advances and responsibilities, as set forth in said contract.
This plea amounts to the general issue. ' The plaintiffs [340]*340allege in the second count, and, if the general issue is pleaded, they must prove that the lumber, at the prices agreed, amounted to more than was required for the defendant’s indemnity. The plea is plainly bad as amounting to no more than the general issue, and that is assigned as a special cause of demurrer. (The Bank of Auburn v. Weed and another, 19 Johns., 300; Wheeler v. Curtis, 11 Wend., 653, 660.)
I have intended not to go beyond the case in hand, but to confine myself strictly to what arises on these pleadings. No opinion is given, nor designedly intimated, upon any other state of facts. The obscurity of this agreement, and, in some aspects, its absurdity; the doubt, for there is room to doubt what the parties could have meant bj’ such an instrument, all conspire to impress upon us the propriety of forbearance and caution. Whatever difficulties exist in the case as it is, it must be decided, but there the court should stop.
The defendant is entitled to judgment on the demurrers to the pleas to the first count, and the plaintiffs on the demurrers to the pleas to the second count, with leave to each party to amend on the usual terms.
Ordered accordingly.