This was a suit upon two notes, for two hundred dollars each, brought by Windham against Jesse Doles and John T. F. Doles, and Dixon, as indorser thereon. Two points are made in the record: first, were the defendants bound by an agreement in writing made by the counsel to abide the judgment of this court upon a similar case decided at the same term of the superior court, and to be brought to this court ? and, secondly, is the verdict against the law and the evidence %
1. In respect to the first point, it was agreed to submit to a verdict for plaintiff if this court affirmed the verdict below in a similar case to be brought here from a judgment rendered at that term of the court below; but the case was not broxight to this court, and no judgment at all was rendered. Hence there can be no specific performance of the agreement, for nobody can tell what judgment would have been made in the other case. If it were reversed, then the two cases were to be consolidated and to be tried together according to the law ruled here; but we cannot tell what wé would have decided, for the facts of that case are not here, and and how the circuit court could have foretold our decision and enforced the agreement we cannot see.
If the party or counsel acted badly in not bringing the case here, the court could have punished for contempt; or the other party, if injured, could sue for damages; but the contract could not have been possibly carried out, so far as we can now see.
2. We think, however, that the facts do not look well for the defendants on the merits of the case. Jesse Doles bought the land from Dixon in 1870, and made some payments thereon then, giving notes for the balance. These notes were renewed from time to time, and in 1872 Wind-ham bought the renewed notes before due, and gave value for them. They were then made payable to him, Wind-ham, after Doles had full opportunity to examine the land, *268have it surveyed, aud find out any deficiency. Then the next year, the notes bought by Windham were paid to him in part, and new notes for two hundred dollars each given to Windham, with the other defendant, Doles, as security, and Dixon still indorser, as when the first were given to Windham.. There was some evidence that Windham had heard of the deficiency of acres of land, (the consideration of the notes, when first given to Dixon, being land, and the deficiency claimed to' be over 100 acres) though he bought the notes before they fell due ; but we think that when Doles made a new contract — a novation — with Windham — gave notes to him directly — got time on them” — and gave new security on them — that he cannot now be allowed to set up a- deficiency in the acreage of the land. The new contract to a different payee, on a different security, put an end to the old contract. It would have discharged any security, or maker of the first contract, who was not on the last, and it certainly ought, in equity and good conscience, to estop the defendant from setting up the old partial failure of consideration of the old contract. And such, we believe, is the spirit of the rulings of this court, and certainly it is the reason and spirit of the law. See 57 Ga., 223.
We therefore reverse the judgment, and grant a new trial, for the reason that the verdict is against the- law and facts of the case, as this record makes the facts appear.