On Petition for a Rehearing.
Bicknell, C. C.— The petition claims that the court below, after stating the rule that a larger sum is not discharged by the payment of a smaller sum, except in certain cases-which the court would enumerate, did not err in failing to mention one of such exceptions, to wit: That where the payment, made and accepted in satisfaction, is by a negotiable check, it will discharge the larger sum. .
Upon this proposition, the authorities cited in the principal opinion, show that the court below did err.
The appellee argues the case as if the plea of payment stood *64alone, but the fourth defence expressly avers that the money was paid and accepted in full satisfaction of the entire promise.
Filed October 11, 1883.A verdict, in accordance with the weight of the evidence and with justice, will not be set aside because of error in the instructions, but here the error of the court embraced the controlling feature of the case. It undoubtedly misled the jury, and it was followed by a verdict which, we can not say, was in accordance with the weight of the testimony, nor with justice.
The petition for a rehearing ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled.