The error in the charge consists in its departure from the issue in the pleading of the parties.
The defence to the note set up in the plea (which was held sufficient on exception,) is, that after giving the note, a new agreement was made by which Sowers bound himself in a bond, to make a title to the land directly to Mann, and Mann bound himself to pay to Sowers, instead of to Hudson, the $500 still due upon the land, when Sowers should make to Mann a deed to the land, which was to be done when a patent should be issued by the government for the land; and that this note, upon the making of the deed, should be regarded as a payment of the said $500, and should be receipted upon making said title. The true issue to have been presented to the jury was, whether or not they believed, from the evidence, such new agreement had been made as alleged in the plea. The effect of such an agreement would have been, to suspend Sowers’s obligation to pay the note, until he could procure the patent from the government, or at least, until he was shown to be in default in not procuring the patent, and in making a title under his bond. If such agreement had been made, it was incumbent on the plaintiff, before he could recover on the note, to allege and prove facts, which placed Sowers in default in not procuring the patent or making the deed.
The charge of the court reverses the matter, and makes Sowers’s right to resist the enforcement of his obligation on the note, dependent upon his having procured a patent from the government, and executed a deed to Mann. This was directly contrary to the terms of the new agreement, as alleged in the plea. The bond given by Sowers to Mann, and Hudson’s testimony, tended to establish this new agreement, and might well have been regarded by the jury as full proof of it. For this error in the charge of the court, the judgment is reversed and the cause remanded.
Reversed and remanded.