The plaintiff produced a bond, payable to him, for fifty-five dollars due 27th of December, 1851, on which was an endorsement of a credit of $43.05, which however had been erased and made to read $4.05. This was explained thus: the parties having come together for a settlement of accounts, upon a computation it was agreed and settled that the defendant was entitled to a credit of $43.05, which was accordingly entered on the bond in question. A few days afterwards, the plaintiff met the defendant and informed him that there was a mistake in their settlement, and that the credit ought to be for four dollars and five cents, instead of the sum entered, and requested the defendant to go with him a short distance to where his papers were and he would show the error: the defendant declined going, but said "go and alter it, and if you can show me the mistake, it will be all right; and if not, the credit must be put back" or "altered back;" at the same time Davenport, the defendant, sent his step-son to witness the alteration.
There was no further evidence to show that there was a mistake in the credit as first entered. *Page 139
Upon this state of facts his Honor instructed the jury that the question for them to try was, what was the credit to which the defendant was really entitled? That the agreement on the sum of $43.05, and the entering of that sum on the bond, entitled the defendant to that amount as a credit, unless, acording [according] to the subsequent agreement, the plaintiff had shown to the defendant the mistake alleged by him, or was able to show it there, upon the trial; to which instructions the plaintiff excepted.
Verdict for the defendant. Judgment and appeal. His Honor, who tried the cause below, would have been guilty of gross error if he had charged the jury otherwise than as he did. The plaintiff contended that the agreement between the parties as to the endorsed payment, was divisible into two contracts; one executed, the other executory — that as soon as the alteration of the endorsement was made by the plaintiff it was final, that is, executed and bound both parties; but as to the restoration of the original endorsement it was executory and had never been done. There is no foundation in law for any such distinction between the parts of the agreement: the whole was one transaction — one agreement: upon a settlement of accounts between the plaintiff and defendant it was agreed between them, that the former owed the latter the sum of $43.05, and that this sum should be endorsed on the note, now in controversy, as a payment to that amount; subsequently the plaintiff, alleging that there was an error in the settlement, and that the credit ought to be $4.05, the defendant agreed the plaintiff should alter the endorsement to the latter sum, upon the express condition, that if he did not show him that the mistake as alleged did exist, the endorsement should stand as it was; to this the plaintiff assented. Without pretending so far as is disclosed by the case that he ever showed to the defendant that there was any error in the settlement, he brought his action: nor did he on the trial of *Page 140 the case then show that any error did exist. The defendant is entitled to a credit on the note to the extent of the sum originally endorsed.
Allowing the payment of $43.05, there would still be a small sum due the plaintiff: as, however, the jury gave a general verdict for the defendant, and it forms no part of the plaintiff's bill of exceptions, we presume there was evidence of other payments discharging the note, and that the only question intended to be brought before us was as to the endorsed payment.
PER CURIAM. Judgment affirmed.