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Weeks versus Elliott
Wells, J., orally.
— In these exceptions, we are to look only at the instructions given and the instructions refused.
The Judge instructed the jury that if the agreement, as testified to, was made, and if it was not executed at that time by an allowance on the notes in suit, it was not then a payment ; — and that, unless the plaintiff, after the official services were rendered by the witness, had allowed or indorsed the amount upon the note, the services did not constitute a. payment.
If the agreement was that the plaintiif should receive the witness’ promise, as mere collateral to the notes in suit, and not to be effective as a payment, till the services should have been performed, it did not operate as a payment.
So, if the promise of the witness was merely to pay the debt of the defendant, it was void by the statute of frauds, and could not discharge the note.
[492] It may however be said, that it was neither a collateral promise, nor a promise to pay the debt of another, but that it was a promise by the witness to pay his own debt; and to pay it to the plaintiff, instead of the defendant. But there was no assignment of the due-bills, by the defendant to the plaintiff, with a promise by the debtor to pay to the plaintiff. The plaintiff could maintain no suit against the witness. The instruction given was therefore correct.
At most, the promise by the witness was merely executory. The instruction requested, (that the jury should consider the $28,50 as paid at the time of the promise,) was therefore rightfully refused.
Again, the defendant requested instruction that the services, so fast as performed, operated a payment pro tanto. But the agreement was in solido, an entirety. It did not contemplate piecemeal payments, nor compel the plaintiff to divide up his debt and receive it from time to time in parts. This requested instruction could not properly have been given.
In offering this opinion, the Court do not intend to be considered as establishing the right of a party to request instruction, after the jury has once retired with the case.