(dissenting). As I read the testimony there was no dispute whatever, at the time of the alleged cancellation of defendant’s indorsement, as to her liability upon the note now sued upon. She was also liable to plaintiff upon another note for $525. He demanded payment. There was some question about a claim on behalf of defendant against plaintiff and the amount was, after discussion, fixed at some eighty odd dollars. This was deducted from the amount due *615on the $525 note and a check for the difference given to plaintiff. By this transaction defendant was allowed all that she claimed against plaintiff, and she paid him no more than she owed him upon the $525 note, less whatever was then due on open account. Whatever controversy there was related only to his open account. The note now sued on, was in no wise concerned in the dispute. As to it, there was no dispute whatever, and no consideration passed for the cancellation of defendant’s indorsement. Ho just objection can, therefore, be taken to the charge of the learned justice. In the main, the charge was quite as fair to defendant as she could reasonably ask, and it is not surprising that the jury refused to credit her story as to how and why the indorsement was erased.
The judgment should be affirmed, with costs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.