The opinion of the Court, Shepley I. having been attending to the trial of jury causes in the county of Washington at the time of the argument, and taking no part in the decision, was drawn up by
Whitman C. J.As to the two first counts, depending on a memorandum of an agreement in writing to reconvey real estate, upon the payment of certain notes held by Messrs. Charles Warren & Co. on which thé defendant was but a surety, the defence is, that this action was prematurely commenced, before notice to the defendant that the notes had been paid, and before a demand had been made upon him for a reconveyance. The reliance on the part of the plaintiffs, in reply to this defence, is, that their attorney wrote -to the defendant, “ describing a memorandum and requesting a re-conveyance of said premises,” to which the defendant replied, by letter, that, “ if any such agreement was in the hands of said attorney it was a forgery.” It does not appear that the defendant was apprised, by letter or otherwise, that' the notes had been paid; nor does it clearly appear that the memorandum was so described to him, that he w'as not justified in supposing it could not be genuine. The statement is that a memorandum . was described to him. If the notes taken up had been exhibited to him, together with the memorandum and a deed prepared to be executed, and he had refused to execute it, he would have been liable; but we cannot know, if such a course1 had" been taken, and which the plaintiffs should have pursued, that it would not have been successful. As the case is presented to us, it cannot be considered, that the allegation in the defendant’s letter, that the “ agreement” was a forgery forms a sufficient ground to infer, that, if proper steps had *315been taken to convince the defendant of the justice of the claim against him, he would not have yielded to the demand. Upon a discontinuance as to these two counts the plaintiffs will have ample opportunity to place themselves in a condition to compel a specific performance of the contract.
We see no good reason why the plaintiffs should not recover on the other two counts. The $57,27& was charged to the plaintiffs by the defendant, in a settlement of accounts, as having been indorsed on a note, which Jonathan Osgood, one of the plaintiffs, had given to the defendant, which in-dorsement had never in fact been made. This then was clearly an error in the settlement of accounts between the parties. It was an allowance of an item under the influence of a charge actually false, made by the defendant. It is true that judgment had been recovered on the note, before the commencement of this action, upon default; against the said Jonathan ; and it may be that he might have compelled the defendant to have allowed the item in set-off against the note; but we are not by any means prepared to say that, under the circumstances of this case, he was bound to have done it; especially as he was, by reposing confidence in the defendant’s false representation, led to the belief that the item had been actually indorsed ; and had no knowledge to the contrary till execution came against him. This is a much stronger case for the plaintiffs than were those of Fowler v. Shearer, 7 Mass. R. 14; and Rowe v. Smith, 16 ib. 306. The offer to indorse the amount on the execution of Jones v. Osgood, made at the trial could not vary the rights of the parties in this action.
The plaintiffs, therefore, as to the two first counts, have leave to discontinue ; and as to the other, a default is to be entered ; and on the $57,27| interest will be allowed from the time of the settlement of .the accounts.