Opinion.

One Duke, who was indebted to the appellants in the sum of $1,400, made a parol assignment to the appellee of his stock of *653goods and a considerable amount of notes and accounts, which goods, notes and accounts, Combs was to convert into money by sale of the goods and collection of the debts, and out of the proceeds was to pay several thousand dollars to certain designated creditors of Dulce, and was to retain a considerable commission for his services. After this assignment was made, Menken Bros, procured Duke to give them an order on Combs, which was in the following form:

“Garner, Miss.j May 1st, 1877.

“Dr. J. L. Combs : — Pay to Menken Brothers, or order, fourteen hundred dollars out of any balance due me on settlement, the amount paid on this order to be a credit on my acct. with Menken Bros. P. M. Duke.'”

Upon which Oombs indorsed his acceptance as follows:

“Accepted with the following conditions: If anything is due P. M. Duke on settlement day, January 1, 1878, or thereafter.

“J. L. Combs.”

On the 4th day of May, 1881, the appellants brought suit against Combs, on the writing, adding in the declaration a count for money had and received to their use.

The evidence, which in some respects is meagre, shows the existence of about this state of facts: Combs collected of the assets transferred to him a considerable amount and sold a quantity of the goods; how much is not clearly shown; the balance of the goods were either turned over by him to Duke, and therefore were levied on by the judgment creditors of Duke, or were levied on under said judgments while in the hands of Combs, and sold by the sheriff. Out of the moneys received by him Combs paid some of the creditors who were preferred at the time of the assignment, but so far as shown, there remains of such preferred claims between three and four thousand dollars yet unpaid. After the acceptance of the order in favor of plaintiffs, Combs opened an account with Duke, in which Duke is credited with collections made on the assigned choses in action, and is charged with the debts paid by Combs to the preferred creditors. On this account appear also, charges against Duke for money paid to him or to others on his orders; the total amount of charges of this character, probably equal or exceed plaintiff's demand. It is also shown that Combs *654turned over to Duke a note for $3,000, and Duke, who testifies to this fact, does not explain wiry this was done, or wbat became of the proceeds, if collected, or of the note, if uncollected.

On the trial the defendant asked the court to instruct the jury that one who sues upon a conditional acceptance must aver and prove the fulfillment of conditions named in the acceptance before be can recover, which instruction was given.

The plaintiff requested the court to charge the jury that although the order in their favor was payable only when a settlement had been made between Combs and Duke, yet if a reasonable time had elapsed for such settlement and it had not been made, the plaintiff was entitled to recover, which instruction the court refused to give. There was a verdict and judgment for the defendant and a motion for a new trial by the plaintiff, which was overruled.

Tinder the facts developed by the testimony, we do not think it was incumbent upon the plaintiff to prove that a settlement of accounts had been made between Combs and Duke, as a condition precedent to their right to recover. No explanation is given by Combs of the payment by him to Duke of the proceeds of the assigned property, which was appropriable to the payment of the debts of Duke, and which, by his acceptance, he had agreed to pay to the plaintiffs after the payment of the preferred debts.

The plaintiffs having proved the receipt of the money by Combs, and its payment by him to Duke, to whom he was not authorized to make payment without having first paid the plaintiffs’ order or reserved an amount sufficient for its satisfaction, were prima facie entitled to a recovery and it developed upon the defendant to overturn their ease by a satisfactory explanation of such payment. Not making such explanation, the defendant cannot defeat the plaintiff by invoking the letter of his contract. If no settlement was in fact made, it was because' the defendant waived his right to demand it, in favor of Duke, and having waived it, as to Duke, he cannot insist upon it as against the plaintiffs.

Judgment reversed.