delivered the opinion of the Court:
This was an action of assumpsit, brought by appellees against appellant, as administratrix, on this instrument: “ I owe the estate of Zenas Warden one hundred and ninety dollars 15-100. May 13,1863. Joseph Bowles.” On a trial in the court below, plaintiffs recovered a judgment for $250.40, which was to be paid in due course of administration from newly discovered assets. Defendant appealed, and has brought the record to this court.
It appears from the evidence that Bowles, in his life time, was in the habit of giving to those who had accounts with him similar papers as statements, merely, of their accounts, and not as promissory notes; and inasmuch as there is no person named in this instrument as payee, we infer that it was intended only as a statement of the balance of his account with the estate of Warden. /It was evidence that Bowles then owed-the estate the sum. specified therein. If it was not a promis-) sory note, but merely a statement of the account, the subsequent-^ settlement and the giving of the note for $174.57 operated to cancel it, as the amount named in it must have been taken into account in the settlement. This instrument is widely different from the note subsequently given. That has all the forms requisite to clearly indicate that it was intended as a note, while the instrument sued upon has the form only of a mere memorandum of the balance of the account.
Again, Mrs. Warden stated to Forns in 1864, when he proposed to purchase a horse of her, that Bowles owed her nothing ; and the note given to her as administratrix by Bowles the following August, was paid in full in 1864, and the clerk who paid it for Bowles states that she made no claim at that time, or when the note was given, that any other sum was due. When it is remembered that this is claimed as Giving to the' estate, and as the note was not suffered to remain unpaid for any great length of time, we can hardly believe that, had this instrument been regarded as a note and the sum unpaid, it would have been suffered to remain such a length of time without an effort for its collection. We are, therefore, of opinion that the evidence fails to sustain the verdict, and the court below should have granted a new trial. The judgment of the court below is reversed and the cause remanded.
Judgment reversed.