The opinion
WASHINGTON, Circuit Justice,
delivered the opinion of the court.
If the plaintiff give any .evidence, from which the jury may imply facts sufficient to support the action, the court will never take the case from the jury by directing a non-suit. But if, after giving the fullest weight to the evidence, the plaintiff is not entitled, in point of law, to a verdict, it would be a mere waste of time to proceed further in the trial; and it is then proper to direct the plaintiff to be called. It is impossible for the plaintiff to succeed upon the count on the bill of exchange, because of the total absence of proof, that it was presented for acceptance; or that if it were presented, notice of its dishonour was at any time given to the defendant.
It is contended, that the subsequent promise of the defendant amounted to an acknowledgment of both these facts, and to a waiver of any advantage which might be taken on account of a want of evidence to prove them. But we take the law to be perfectly clear, that to produce these consequences, the promise must be a valid one; must be clearly made out in proof; must be absolute; and should appear to have been made upon a full knowledge of the facts, which the promise is supposed impliedly to admit. In this case, the .promise was not made to the plaintiff nor to his agent; — it was conditional, and might therefore be consistent with a denial of those facts; and there is no evidence whatever, that the facts were known to the defendant; particularly, that of the non-presentation of the bill. Hie plaintiff’s case, therefore, is not relieved from the objections to his recovery on the first count, by his subsequent promise or declaration.
As to the count upon the promise, as constituting a new contract, the objection that the plaintiff was no party to it, is fatal. If it was valid to bind the defendant to pay whatever he should be able, it must have been also obligatory upon the plaintiff, .to wait until that event should take place. But this was clearly not so. The declaration was not made to the plaintiff, nor yet to any person authorized by him to assent to it, or, in any respect, to bind him. It was never afterward ratified by the plaintiff, in word or in deed. So far from it, he afforded record proof of his dissent, by instituting his suit at least two years before it is pretended that the defendant was able to pay; and grounding it, not on the new promise, but upon the original cause of action. He cannot now be permitted to avail himself of a promise which he has once refused his assent to, because it will now serve his purpose.
The plaintiff agreed to be called.
Nonsuit.