(dissenting.) By his complaint, the plaintiff seeks to recover the sum of $2,523.07 as damages alleged to have been sustained by the plaintiff because the defendants, in violation o¡ an agreement made by them to pay plaintiff’s note for $2,500, which the plaintiff had given to them, failed to pay said note, and because, in consequence of such failure, the plaintiff was compelled to pay the amount of the note, with interest, protest fees, and costs of collection, amounting altogether to the sum of $2,523.07. That being the cause of action sued upon, I fail to perceive how, in any event, the damages to be awarded can exceed the sum of $2,523.07. The trial, however, seems to have been conducted as if the action were for a general accounting, and the trial judge refused to submit to the jury any question except the question as to how much the verdict should be for the plaintiff; and as to that the instruction was that the verdict must be for either $3,542.28 or for $2,892.28. Upon an examination of the whole case, I fail to find that the defendants are in any wise chargeable with any such result. By the exceptions taken by them to the admission of evidence, to the denials of their motions to dismiss, to the charge as delivered, and to the refusal of the court to charge their requests, the defendants preserved to themselves the right to have the issues as made by the pleadings determined, and nothing else. According to plaintiff’s own showing, there had been a long prior course of dealing between the parties, to the effect that the defendants, at the request of the plaintiff, would sell goods to certain merchants in the south, but charge them to the plaintiff at a discount of 10 per cent., and that the plaintiff, in order to earn said discount, would have the goods charged against himself, and settle for them from time to time. The complaint specifically alleges: “That on the 5th day of March, 1884, this plaintiff was indebted to said defendants, on account for goods so purchased as aforesaid by him, in the sum of $1,000. That on the said 5th day of March, 1884, this plaintiff called at *310the store of said defendants in the city of New York, and stated to them that he (said plaintiff) desired to settle and close said account. It was then bargained and agreed by and between the parties to this action that, for the purpose of closing and settling said account, and to accommodate this plaintiff with a loan of $1,500, said plaintiff should make his note, for the sum of $2,500, payable to the order of the defendants at the Ninth National Bank, in the city of New York, in four months after date, and the balance of the proceeds of said note over and above the amount due on said account, viz., the sum of $1,500, should be held by the defendants subject to the draft of this plaintiff. It was then and there further agreed by and between the parties to this action that the plaintiff should be at liberty to deposit money with said defendants from time to time before the maturity of said note, which deposit should be appropriated to, and applied by the defendants to, the payment of said note, and the defendants should take up said note at maturity. That said plaintiff did, pursuant to said agreement on the 5th day of March, 1884, make and deliver his said promissory note to the defendants for the sum of $2,500, payable to the order of Carhart, Whitford & Co. in four months after the date thereof, at the Ninth National Bank, New York city, and did then close said account.” The defendants, on the other hand, denied that they made an unconditional promise to take up the note; and they insisted that whatever promise was made was of no legal, binding force. They denied that plaintiff’s account was closed on March 5th, and showed that the settlement which took place on that day was a settlement of plaintiff’s account up to February 1st, pursuant to the custom between the parties, and that it had been the custom between them to close the fall account on the 1st of February of the next year, and the spring account on the 1st of August of the same year. They also showed that there were items in the month of February that were not included in the settlement; and, after all that, they gave evidence to show that, by reason of subsequent transactions, they were justified in not paying the note, and in applying the amount in their hands to such subsequent transactions. They also set up in their answer a counter-claim for a balance due to them.
Aside from the other questions indicated, the substantial • controversy between the parties, under the issues as presented by the pleadings, and the evidence competently given, hinged upon the disputed question of fact whether, by the settlement of March 5th, the entire account of the plaintiff was closed; and upon this question there was quite a conflict of evidence. The request of the defendants that the question whether or not Mr. Quimby purchased certain goods after the 5th of March from the defendants which were sent, to Matthieson & Doolittle, which was refused, and to which refusal due exception was taken, directly involved the proposition that the said conflict should be submitted to the jury for determination; and the refusal of the court to submit the question clearly constituted error. As this error alone necessitates a new trial, it is not deemed necessary to say any more than what has already been said. The judgment and order should be reversed, and a new trial ordered, with costs to abide the event.