| Ga. | Aug 15, 1859
By the Court.
delivering the opinion.
Did the Court err in granting the nonsuit ? We think not.
The instrument declared on, is so absurd as it stands, that we may assume it to contain a mista*ke. It is probable, that it was Wilson who drafted the instrument, and, that he, by inadvertence, forgetting that he was writing for Morrison, used the words, “ a certain note, I have this day traded to said Morrison,” instead of the words, a certain note, the said B. J. Wilson has traded to me.
Assuming this supposition to be true, did the Court err, in granting the nonsuit?
What, on this supposition, does the instrument mean ? This, we think: That Morrison promised to pay Wilson $177 by the 25th day of December, 1855, out of a note, on Perry-man, “ traded” by Wilson to Morrison, provided, the note should, by that time, be collected, but if it should not be, then to pay him the $177 when the note should be collected and not before. The promise was a promise to pay out of
Taking this, as the meaning, it is obvious, that the nonsuit was right, for there was no proof, that thePerryman note had been collected, or that it might, by the use of ordinary diligence, have been collected.
We think then that the nonsuit was right
Judgment affirmed.