¶1also dissented. He expressed his opinion in substance as follows. From the facts in this case it appears that the plaintiff had the controul of Magill's notes, in which the defendant had an interest to the amount of the note now in suit; and that the plaintiff, by his agents, gave up and cancelled those notes without any authority from the defendant. This as to the defendant’s paid is payment, and fulfils the condition. If the ordinary course of collection had failed, the defendant must have shared the loss ; but the plaintiff could not cancel or compromise Magill's debt, without making himself responsible to the defendant. His agents could have no greater powers. I am, therefore, of opinion that a new trial ought not to be granted.
¶2New trial to he granted.
¶3The plaintiff had right to appoint an agent to collect the notes against Magill ; and when this note was executed, the defendant ratified what had been done by the plaintiff. Goodrich is, therefore, to be considered as the *353agent of both parties. At this time, all the proceedings respecting the collection of the notes against Magill, had taken place which now appear; but they were not known to the parties. The condition of the note was, that if the money due from Magill were secured to the plaintiff, or collected by Goodrich, in one year, the note was to be void. From the facts stated and agreed to by the parties, it appears that the money has never been secured or collected. Of course, the condition has not been complied with ; and as Goodrich was the agent of both, any act done by him cannot subject the plaintiff to the loss of the whole debt, and operate as a payment of this note.
¶4The evidence is not sufficient to support the evidence in favour of the defendant, and a new trial ought to be granted.