Swansey v. Breck , 10 Ala. 533 ( 1846 )

GOLDTHWAITE, J.

On looking át the order accepted by Taggert; (who is the testator, represented by the defendants in the declaration,) it will be seen he bound himself by the acceptance, to pay the sum named out of the note upon Gilmore token collected. We think it clear, this was a promise binding upon Taggert whenever the condition became absolute, and that his representatives are liable on the promise, independent of the time or person, when and by whom the note was actually collected, [Jones v. Jones, 5 Ala. R. 262.] All that was essential in a count on this promise was, to aver the collection of the note referred to by the order, and that the money thereby due was not paid. This is the ef-feet of the averments contained in the first count, and we are therefore unable to perceive any ground for sustaining the demurrer, as the first count is substantially good.

Judgment reversed and cause remanded.