This was an action on the case in assumpsit. The declaration contains four counts, the first and second upon promissory notes given by Daniel Murray and the intestate, Isaiah Spencer; and the third and fourth upon contracts therein set forth. The case is as follows: Daniel Murray and Isaiah Spencer were the owners of a line of stages and jointly concerned in running it between Raleigh and Greensboro. They contracted with the plaintiff to keep eight horses for the year 1841, as set forth in the third count, for the sum of $850, and the same number of horses for the year 1842 for the sum of $1,000. The action is brought to recover the amount due upon the notes and also upon the special contracts. On the trial it was admitted by the plaintiff that, in 1842 and after the death of Spencer, the defendant Daniel Murray, by *Page 304 (424) agreement with him, removed four of the horses, and that he claimed upon the contract for that year only for the horses he did keep. It further appeared that on 19 May, 1842, the defendant, Murray, as surviving partner, executed to the plaintiff two promissory notes, one for the sum of $823.83, for the keeping of the horses for the year 1842. These notes were in the possession of the plaintiff and were produced on the trial and were tendered to the defendant. The case states that the notes stated in the first and second counts were proved, and the contracts stated in the third and fourth counts proved precisely as stated. Upon the closing of the testimony the defendant submitted to the court that the plaintiff should be called and nonsuited because of the alleged variance between the contracts as set forth in the third and fourth counts, and the contracts, as they contended, which had been established by the notes given on 19 May, 1842, and because of the removal of the horses, by agreement between the plaintiff and the defendant Murray.
The motion of the defendants was overruled, and a verdict and judgment having been rendered for the plaintiff, the defendants appealed. The motion was properly overruled by the court. The plaintiff was unquestionably entitled to a verdict on his first counts, and from the statement of the case as little doubt can exist to the two last. The contracts as set forth were proved. How, then, could the plaintiff be nonsuited? If it had been proved that the notes of the 19th of May had been paid, or in any other manner their value had been made available to the plaintiff, the court might have been called on to instruct the jury that the defendants were entitled to a verdict on the third and fourth counts; and it would have been his duty so to (425) charge. But such was not the fact. They were given by a surviving partner, for debts due by the firm, and were unpaid. The original contracts were not thereby extinguished, but the plaintiff was at liberty to sue upon them, and recover what was justly due him, upon tendering back the notes. Ex parte Hodgkinson, 19 Ves., 291. Nor does the removal of the four horses, as stated, have any other effect than diminishing the amount which the plaintiff was entitled to recover.
PER CURIAM. No error. *Page 305