Montgomery against St. Stephen's Church, 4 Watts & Serg. 542

The opinion of the Court was delivered by Rogers, J; — Several special causes of error have been assigned, but they resolve themselves into one question, viz: whether the instrument declared on is an absolute or conditional contract. If it be the latter, an averment is essential that the pews, or some of them, were sold, or that there was a refusal to sell on request made by the plaintiff.

If the loan of the money and the execution of the instrument declared on were cotemporaneous acts, and this the first count assumes them to be, we are inclined to believe it must be taken as a conditional, and not an absolute engagement. The instrument must be construed according to the intention of the parties, and it is difficult to believe that it was intended that Montgomery should have the right to sue the church the day after the contract was sealed, the inevitable effect of the construction put upon it by the plaintiff.

But, on the supposition that the money was loaned on the day of the date of the instrument, it would rather strike us to have been a concerted movement among certain members of the corporation to effect a loan, and to look exclusively for reimbursement to the funds of the church, derived from the sales of certain pews particularly enumerated; the proceeds of which, when received, to be divided pro rata among them.

This, we think, is the true reading of the contract, on the supposition as above stated; and from this it will follow that to sustain the suit until default be made, would be an injury to the contributors as well as the defendant; as non constat, that the money would have been borrowed on any other terms, or that the other contributors would have advanced the money on any other conditions. Gore and Wingfield’s Case, (3 Leon. 223, and 4 Leon. 208), has been cited as an authority on this point.

But there the obligee had a double remedy; to bring his action on the instrument, or to levy his money according to the clause in the obligation. There was nothing in the bond which would warrant the idea that the money due was to be paid in a particular manner, or out of a specified fund. The plaintiff was at liberty, therefore, as was ruled, to bring his suit on the obligation, or to levy his money according to the condition. The words, however, of this obligation are peculiar: “ Be it remembered, that Austin Montgomery having loaned to the Rector, Churchwardens and Vestry of St.

Stephen’s Church the sum of $1700, is entitled to receive payment of the same, without interest, from the sales of the following pews, viz: Nos. 8, 14, &c., all down stairs, and the whole of the gallery pews, excepting Nos. 4, 11, áse., payment pro rata to be made when any sale is effected, and the purchase money received.” An inspection of the instrument leads to the conclusion that it is the acknowledgment of a debt previously contracted, and the pledge of a fund for its gradual liquidation, by sales of certain pews afterwards to be made.

In this view the evidence ought to be submitted to the jury; for then the agreement would be nothing more than a collateral security or pledge for the debt. The case of Charles v. Scott, (1 Serg. & Rawle 296), is an authority in point, that an agreement, although under seal, accepted as a collateral security, is not a merger of a simple contract debt, and may be read in evidence to show the amount originally due. Kemmill v. Wilson, (4 Wash. C. C. R. 308); Perit v. Pittfield, (5 Rawle 166).

We are of opinion, therefore, that the court was right in giving judgment for the defendant on the demurrer, but that there was error in overruling the evidence offered on the second count for money lent. Judgment reversed, and a venire de novo awarded.