Opinion by
William W. Porter, J.,The plaintiffs owed the defendants for rent due February 1 and March 1, amounting to $250. Their goods were distrained upon. Pending the distress they paid the constable $60.00 on account, leaving a balance of rent and costs due of about $200. They then gave the defendants a judgment note for that amount, conditioned to pay $20.00 a month, representing by affidavit that it would bind the property of one of the plaintiffs, upon which there was an incumbrance of but $1,700. The defendants assert that discovering that the mortgage was $1,750 instead of $1,700, they notified the plaintiffs of the fact, and that it was then agreed that the watchman should be removed, but that the levy should remain until the rent was paid. Within a short time the April instalment of rent, amounting to $125, became due and was not paid. One of the plaintiffs paid to one of the defendants’ clerks $50.00 on account, taking a receipt showing that it was received for the constable who was in charge of. the levy still pending. In a few days a further payment of $15.00 was made and a similar receipt taken. The money was turned over to the constable. A few days thereafter the defendants withdrew the first levy and made a new distraint for the balance due on the rent for February and March (for which the first levy was made), after deducting the payments of $50.00 and $15.00, and for the instalment of rent accruing April 1.
It appears that the first monthly instalment of $20.00, due by the terms of the judgment note, was tendered to the defendants and that the money was left with them (no receipt being given), and that the second monthly payment was tendered but declined. The plaintiffs claim that the judgment note was given and accepted in payment of the rent then in arrear; that the payments of $50.00 and $15.00 were on account of the April rent, and not of the rent in arrear for which the first distraint was made, and that they are liable only for the balance of the rent of that month, amounting to $60.00 with some costs.
*534The learned court below held that the acceptance of the judgment note for 1200 (in view of the terms of the affidavit of one of the plaintiffs executed contemporaneously therewith), operated in law as a payment of the rent then in arrear. The result of this view was the exclusion of testimony on behalf of the defendants, tending to show that the judgment note was taken tentatively until the representations as to title and incumbrances respecting the land to be bound by the judgment note should be verified by examination, and that on the representations proving to be erroneous, the defendants asserted their right to proceed for the rent, irrespective of the judgment note. This evidence being excluded, a verdict was directed based upon the assumption that the judgment note paid the rent then in arrear; that the payments made thereafter were to be credited to rent accruing after the giving of the judgment note, and that the balance of that rent was the amount of rent due. If the judgment note was shown by the writing to have been accepted as payment, the learned judge was right in his view. But the affidavit made at the time of the giving of the note cannot be construed, as matter of law, to be conclusive of an intention to give and receive the judgment note as payment. The affidavit indicates that the note was taken subject to verification of the representations contained in the affidavit. This is shown by the provision that in case the representations should prove untrue, the judgment should stand for the costs. The inference would seem to be that if they should prove untrue, the judgment should stand for nothing else. The intention of the parties not being clear from the writing, proof of their acts and declarations was receivable. We are of opinion that the evidence offered should have been admitted, and that it, together with the other evidence in the case, should have been submitted to the jury under proper instructions, to the end that the jury might determine what the real intention of the parties was in respect to the giving and acceptance of the judgment note, that is, whether it was given and accepted as payment of the rent in arrear or not, and whether, if the judgment note was given and received as payment, the contract was subsequently rescinded by .consent of the parties, on discovery of the misrepresentation as to the amount of the mortgage upon the property to be covered by the judgment. Upon the determina*535tion of these questions the application of the payments made, and the right to make, the second distraint for the ■ amount claimed, will depend.
The judgment is reversed and a venire facias de novo is awarded.