Tucker v. Wright ( 1871 )

Opinion oe the Court bv

Judge Peters:

Keeling sold his land and conveyed it to Oarman on the 31st of May 1864 for the price of $1100, three hundred dollars of which were by agreement of Keeling, Oarman, and Wilson who was surety of Keeling in his constable’s bond to remain in Car-man’s hands to indemnify Wilson and Tucker, the sureties of Keeling, who held a mortgage on the land to indemnify them.

On the 25th of June, 1864, Keeling gave appellee an order on Oarman for one hundred and thirty dollars and eighty-seven cents, then Oarman still had the three hundred dollars in his hands to pay off liabilities of Keeling as constable, because .Oarman proves that it was about one month after he purchased the land that he paid over the three hundred dollars to Keeling, and the deed to Oarman shows that the sale was on the 3.1st day of May, 18G4.

It was the duty of appellee to have, with due diligence presented the order to Oarman and collected the money, or had the order protested, he fails to show that he had done so. How long after the date of the order till appellee presented it does not appear, but he did not, with due diligence present it, and demand payment and the court below should have allowed a credit to appellants for the amount thereof from its date. And for that error the judgment is reversed, and the cause is remanded with directions to award a new trial and for further proceedings consistent with this opinion.