¶1delivered the opinion of the court.
¶2This is an action on an agreement by which the defendant engaged to pay a debt which he owed to the plaintiffs, in two instalments, in case a note of one of his debtors, of nearly the same amount, which he placed in the plaintiffs’ hands for collection, was not collected by them. There was judgment in favor of the plaintiffs for one-half of the debt, or first instalment, the court being of opinion the action was premature as to the second. The defendant appealed.
¶3The record shows that the note which the plaintiff received for collection, was not paid; but there is no evidence of any attempt on their part to collect it.
¶4It is contended that the defendant, who is the payee, having written on the back of the note that he waived protest, there was no necessity of the plaintiffs showing any , 1 ° J attempt to collect it. It is unnecessary to examine whether the plaintiffs might or not have brought their action on the note against the defendant as endorser, because they have not done so. They have chosen to resort to their action on the agreement. The promise of the defendant therein was not absolute, but conditional. The district judge has thought that the collection of the note was not a suspensive condition — . •» /. i . ii* • __. 1 ,, , of the defendant’s obligation to pay. The collection of the note would have prevented the defendant’s obligation from taking effect. If this collection has not been made, through ° , .t ° the fault of the plaintiffs, the consequence is the same with *236regard to the obligation of the defendant. They received the n0(e for the purpose of collection. If they neglected to inform the makers that the note was placed in their hands for that purpose; if they made no demand, it is to be imputed to their own laches that the note remains unpaid. Their neglect cannot give rise to the defendant’s obligation. The protest was to be an act posterior to the demand and refusal to pay the note. The waiver of it did not dispense the plaintiffs from doing what they were bound to do independently of the protest itself, viz: that, without which, the collection of the note was hopeless.
¶5The District Court, therefore, in our opinion, erred in giving judgment for the plaintiffs. 1
¶6It is, therefore; ordered, adjudged and decreed, that the \ judgment of the District Court be annulled and reversed, apd l that there be judgment for the defendant as in case of non-suit, with costs in both courts.