dissenting. The plaintiffs in error were not obliged to make a motion for new trial, tbongb they might have pursued that course. The question was the proper framing of a decree.
In my opinion there was a novation of the contract. The majority of the court seem to attach first importance to the answer to the first question proposed. I think the decree should have been based upon a construction of all of the answers construed together. The paramount question in the case was as to whether or not the debt had been paid. The jury answered this question by saying it had. It is true they used the word “renewal” in answer to the first question; but there are more senses in which the word “renewal” can be used than can the word “surrender.” In common parlance, renewal frequently refers to re-obtaining the amount which had previously been borrowed by one from a bank or other lender. In the present instance the bank obtained security for $500 more than the original debt mentioned in security deed. The answer to one of the questions was that the deed of the bank was surrendered and the debt paid according to the understanding of loth parties. Not infrequently a security deed is not cancelled of record after it has been paid, and this could have been the fact in the case at bar.