This action is for an alleged balance of $1,308 and interest due upon a promissory note, given at Salt Lake City, Utah Territory, January 19, 1875, by Matthieson to Jones.
The defendant Matthieson in his answer admits the execution and delivery of the note, alleges payment and also an agreement to leave the note in plaintiff’s possession, to enable him to collect an insurance policy assigned by defendant to plaintiff upon certain leasehold property of defendant, situated in Salt Lake City, theretofore destroyed by fire.
The action was tried to a jury, a verdict and judgment was rendered and entered for defendant, and plaintiff appeals.
Upon the trial, the Court, at the request of defendant, gave the following instruction:
■ “If the jurv believe from the evidence that on or about the 16th day of Nov ember, 1875, the plaintiff received and accepted from the defendant a policy of insurance from the Globe Insurance Company, and that was there transferred to him by defendant in payment for the balance due upon the note sued upon in the *532action, due.from the defendant to the plaintiff, in full satisfaction thereof, and delivered the note to defendant at the time the agreement was made, your verdict should be for defendant.”
The giving of this instruction is alleged by appellant to be error, because it assumes, contrary to the fact, that there was evidence upon which the jury might properly find that “the plaintiff received and accepted from the defendant a policy of insurance from the Globe Insurance Company, and that it was transferred to plaintiff by defendant in payment of the balance due on the note,” and was therefore calculated to mislead the jury.'
All of the evidence adduced upon the trial is set out in the bill of exceptions at length, and consists, beside the note in suit, of the testimony of the plaintiff and defendant only.
We have carefully examined the evidence and find nothing which tends to prove that the plaintiff received and accepted from the defendant a policy of insurance from the Globe Insurance Company, or that one was transferred to plaintiff by defendant, in payment for the balance due on this'note, or that tends in any manner to support the theory embodied in the -instruction.
The undisputed facts clearly established, are: that at the time the note was given, the defendant Matthieson transferred to the plaiútiff Jones a leasehold interest in certain real property in Salt Lake City, to secure the pay ment of the note. At the same time ag further security, policies of i nsurance — among them this one in the Globe — were taken out upon the property, endorsed, as is usual in such cases, “ Loss, if any, payable to T. R. Jones, as his claim shall appear at that date,” and were delivered to the plaintiff who always retained the possession of this policy in the Globe.
On the 30th or 31st of October, 1875, following the date of the note, the insured property was burned and destroyed, and the liability of the Globe Insurance' C ompany to pay the plaintiff the face value of the policy became fixed; the amount of his “ claim,” to-wit: the amount due plaintiff upon the note then exceeding such face value.
Thereafter the plaintiff made an attempt to collect this policy, but the insurance company proving insolvent nothing was ever realized therefrom.
*533From these undisputed facts the conclusion is manifest that the plaintiff all the time possessed the policy, was entitled to retain and collect .it; the company was liable to him for the full amount thereof, and the defendant had no right thereto, and no interest, therein which he could transfer, at least until he paid the plaintiff his debt, which he never did.
Matthieson testifies, which Jones denies, but which for the purposes of the question under consideration must be taken as true, that about two weeks after the fire and on the 15th or 16th of November, 1875, he and Jones had a settlement, and at that time Jones agreed to take this Globe policy in fhll payment of the note and throw off the bal anee due, and at the same time handed the note to him, saying : “ Now this note is settledthat “ he returned the note to Jones because he was entitled to the other thousand dollars in the Globe Insurance Company, which was not paid at that time but expected to be paid any moment. There was a condition in the policy that he was to receive the amount that was ascertained to be due upon the no te at the time of their liability; I returned the note to him so that he could collect the insurance policy ;• he promised to return the note as soon as he collected the insurance policy; I made no effort to get the note from Jones; I never had the insurance policies in my possession; they had always been in the possession of the plaintiff Jones.”
This is all the evidence which can be claimed as in any way supporting the instruction asked for and given; and this only tends to prove that Jones agreed to retain what was already wholly his own by right, and without consideration agreed that this should be a settlement of the note. It in no way tends to prove the theory put to the jury by the instruction that there was at the time of this alleged settlement, transferred by defendant to plaintiff, a policy óf insurance in the Globe Insurance Company which was received and accepted by plaintiff in payment for the balance due upon the note sued upon and in full satisfaction thereof.
It will be observed this was an attempt at proving an accord and satisfaction, and not a payment, as the defendant .had plead.
No point regarding the variance, however, was made in the court below or here, and we are not called upon to consider the *534effect of such variance, only so far as it may have a bearing upon the exception to the instruction in question.
The evidence falls far short of proving an accord and satisfaction.
The defendant neither gave nor agreed to give anything .which ■ the plaintiff did not have, and the plaintiff did not receive or agree to receive anything which he did not already possess and was entitled to. The agreement, if one was made by Jones, (which he denies,) to take the policy in full payment and satisfaction of the defendant’s note, was without consideration, and if not executed by the cancellation of the note, would be of no avail as a defense thereto.
The instruction was in the nature of an abstract proposition; had no foundation 'in, and was not justified by the evidence, and in view of the theory of the defendant was well calculated to mislead the jury, and was error prejudicial to the plaintiff.
This, of course, disposes of this appeal, and as the cause must go back for a, new trial we do not deem it proper to pronounce any opinion upon the effect of the alleged delivering up of the note in controversy; but leave the question whether such acts did transpire between the parties as would amount to a cancellation of the obligation, to be determined upon the new trial.
The judgment is reversed and a new trial ordered with costs to the appellant.
All of the Justices concurring.