The opinion of the court was delivered by
Knox, J.It was error for the Court of Common Pleas to withdraw this case from the jury and to direct a verdict for the defendants.
The case presented two questions, and both were questions of fact to be determined by the jury. The first question related to the making of the contract, and the second to its performance by the plaintiff. If the contract was fairly and honestly made, without fraud, misrepresentation, or undue influence on the part of the plaintiff, and the covenants by him fairly performed or offered to be performed, substantially in accordance with the terms expressed by the contract, the plaintiff was entitled to a verdict, otherwise -the verdict should have been for the defendants. We do not think it was necessary for the plaintiff to prove that he had paid the *277$100 note in full before this suit was brought. If he had paid part of the note to Bentley, and Bentley had parted with the note before the remainder became due, it matters not whether it was wholly paid or not before the action was commenced, or even before the trial; for as to Bentley, it must be considered as a payment of the $100 mentioned in' the contract. It is also pretty clear from the evidence that the debts due from Bentley, mentioned in the contract, were paid by Williams in money furnished by him to Bentley for that purpose. There is, however, contradictory evidence as to the manner in which Bentley was supported at the house of Williams.
Whether there was a compliance with the contract stipulation in this respect, could alone be determined by the jury.
Judgment reversed and venire de novo awarded.