The decision of the referee,
overruling the motion for a nonsuit, was correct. It was admitted by the defendant, both in his answer and at the trial, that he executed the note upon which the action was brought, and which was given in evidence by the plaintiff; and the proof of the signature of the payee, to the guaranty indorsed on the note, was sufficient. As the note was negotiable by delivery merely, and the guaranty was for value received, as expressed therein, the possession of the note by the plantiff was prima facie evidence that the plaintiff owned it, notwithstanding it appeared by the date of the guaranty that he did not receive the note until after it became due. The case of Brisbane v. Pratt, (4 Denio, 63,) which is relied on by the defendant, is not applicable, for the reason that the acknowledgment of value received, in the guaranty, is evidence that the plaintiff paid value for the note. But independent of this, I think that case was erroneously decided, and that the decision should not be followed. (See James v. Chalmers, 2 Selden, 209.)
It was not competent for the defendant to prove the declarations of McNiel, the payee of the note, while he was the owner, to affect the plaintiff. (Paige v. Cagwin, 7 Hill, 361.) But any agreement between the payee and the defendant, or message *346from the payee to the defendant, upon which the latter acted, thereby constituting an agreement, entitling him to claim a deduction from the note by way of payment or set-off, before the transfer of the note, might be proved. An agreement is an act done, and thereby differs from a simple declaration. It is provable in like manner as a payment in money or property would be.
■ The testimony of the witness Charles Schanek showed that while the payee was the owner of the note, he sent word by the witness, to the defendant, that he wanted the latter to draw some logs for him, which he had bought of William Schanek; that he wanted the defendant to get them out, and he would allow what was right for it, on the seventy-four dollar note given for the horses; that the witness told the defendant, and he hauled fifty-one logs marked Wm. Schanek; that the logs were left where the payee directed; some were left in the mill yard; and that the defendant then gave directions to have the logs left in a different place, which was complied with. The referee finds that the note in suit was given for a pair of horses, harness, &c., as alleged in the answer of the defendant; and the hauling of the logs and the value of the work were proved by several witnesses. It appeared that after the logs were drawn, William Schanek executed a bill of sale of them to one Babcock. William Schanek was examined as a witness on the part of the plaintiff, and his testimony was similar to that of the witness Charles Schanek, but evidence was given tending to prove his character for truth and veracity to be bad. Laying out of view the testimony of William Schanek, that of Charles, which was not contradicted in any respect, in connection with the other proof above referred to, fully established that the logs drawn by the defendant were drawn at the request of the payee of the. note, and that the services were worth from six to ten shillings a log. Whatever was-the aggregate value of this labor, the defendant was clearly entitled to have applied on the note. The finding of the referee that the note was entirely unpaid, is directly against clear and undisputed evidence.
. The power and duty of the court to set aside the report of a referee, where it is palpably against evidence, which is full and *347in no way contradicted or discredited, cannot admit of a reasonable doubt. (Code, §§ 272, 268.)
[Monroe General Term, September 4, 1854.Judgment Reversed, and a new trial granted, with costs to abide the event.
Johnson, Welles and T. R. Strong, Justices.]