Wallace & Collins made a contract with Bobbins whereby the former agreed to build a house for the latter. They were indebted to Baker & Hall, and Wallace having died, Collins, the survivor of the firm, gave the following draft or order on Bobbins :

“$300. Mr. Miles G. Bobbins : Please pay to Mess. Baker & Hall three hundred dollars ($300) and charge the same to firm of Wallace & Collins on account of work done and to bo done on your building now in process of erection. This December 24th, 1888..

A. J. Collins, survivor.”

*546On tho back of this order was written as follows, to wit:

"I agree to pay the within order when the building is finished and received by Messrs. Bruce & Morgan. December 24th, 1888. Miles G. Dobbins"

The evidence shows that "Wallace & Collins failed to complete the buildiug and turn it over to Bruce & Morgan. Dobbins liad advanced to "Wallace & Collins the full amount for the work they had actually performed, and when they failed to completo the house, he employed hands at bis own expense and had it completed. He refused to pay the draft, and Baker & Hall brought suit upon it, and the above recited facts were put in evidence before the court and jury, and the plaintiffs closed their case. The court, on motion of the defendant’s counsel, granted a nonsuit; to which the plaintiffs excepted.

The draft or order was accepted by Dobbins on the condition that Wallace & Collins should complete the house, and that it should be received by Bruce & Morgan, who seem to have been the architects of Dobbins. He only agreed to pay the draft upon the completion of the building. The evidence does not show that the failure to complete it was on account of any fault of Dobbins. The building uever having been completed by Wallace & Collins, the time of payment uever arrived. Moreover, he agreed to pay it out of a fund of Wallace & Collins, to accrue to them by the performance of the contract, which never being performed, the fund out of which the draft was to be paid never existed. 2 Rand. Com. Pap. §622 ; Newhall v. Clark, 50 Am. Dec. 741 (Mass.) ; Linnehan v. Matthews, 20 N. E. Rep. (Mass.) 453.

_ The court was right, therefore, in granting a nonsuit.

Judgment affirmed.