delivered the opinion of this court.
The plaintiff'sold goods, a part of the estate of his intestate, James McKee, to the defendant, and to recover the value of those goods, this suit was instituted in Prince George’s county court. The sale of the goods, and at the prices charged, was proved, and the plaintiff' was entitled to a verdict for the sum claimed, unless in the testimony introduced into the exception taken in the case, there is to be found proof that the claim was discharged.
It appears, that sometime previously to the sale, a judgment was recovered against the plaintiff’s intestate, upon a claim which the defendant had against, him; and it is insisted, that an agreement between the parties to this suit, will defeat the plaintiff’s action. All that the exception tells us, in relation to this agreement, is to be found in these words:
*240“The plaintiff admitted to the defendant, in the presence of witness, that there was no necessity for the defendant giving his notes for the articles purchased at the sale, and for the value of which tiffs action is brought, as he, the plaintiff, would give the defendant credit for the amount so purchased, on the debt due from the plaintiff’s intestate to said defendant.”
It is impossible that such testimony could be of any advan-tage to the defendant. The testimony must be misstated, though it is out of our power to correct it. The attempt on the part of the defendant, it is presumed, was to prove an agreement between himself and the plaintiff, that one of them proposed, and it was agreed to by the other, that the amount of the goods purchased, and which was less than the amount of the judgment, should be deducted, by the defendant, from the amount of the judgment; yet it nowhere appears, that the defendant consented to any such arrangement.
The plaintiff, then, to show that the defendant, if he had entered into such an agreement, could not have executed it, offered proof, that the judgment of the defendant had been assigned to another person; and the plaintiff, thereupon, asked the court to instruct the jury, that if the agreement had relation to that judgment, (of this- there was proof,) and the judgment had been assigned previously to other persons, (as was proved,) then the agreement was inoperative, &c.
The court, after refusing to give this instruction, proceeded to instinct the jury, that “said agreement, if believed by the jury, did operate in law as payment of said account, although they might find from the evidence, that it related to said judgment, and that said judgment was assigned to said H. and M.} at the time of said agreement, provided they further found from the evidence, that the plaintiff had no knowledge of said assignment at the time of said agreement.”
We are of the opinion, that if the plaintiff was ignorant, at ■the time of the agreement for the assignment, the defendant could have no right to the credit which he claimed. If, in truth, the defendant did make the agreement, and at the time, concealed from the plaintiff the assignment of the judgment, then he practised a gross fraud upon the plaintiff. Nor can it *241be understood, how the defendant could pay this claim with the judgment, which the instruction assumes, had become the property of others.
The pleas in this case, are non assumpsit and payment, and it has been made a question, whether the testimony will support either of those pleas, or whether, in order to avail himself of it, the defendant must not plead accord with satisfaction. This question may properly arise when a different statement of facts is furnished. All that can be said at present is, that there is in the record no agreement, which upon any issues that could have been joined, would have entitled the defendant to a verdict, or have warranted the instructions that were given.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.