Carriere v. Ticknor

CHILTON, C. J. —If no fraud, or misrepresentation of any kind, was used by the defendant, or his agents, to induce the plaintiff to take the note on Sands for $335, inpayment of the account for goods, fyc., sold, and the plaintiff did in fact receive the note in payment, — the defendant refusing to endorse the same, and the plaintiff agreeing to allow the defendant “ to take out, in goods at cash value, as he might want them, the difference between the amount of the account and the amount of the note,” — then it is clear, b}r the terms of the contract, the account was paid by delivering the note, and'the plaintiff became bound to the defendant to allow him to take up goods, at cash value, to the amount of the difference between the note and account. But we are unable to perceive how this undertaking, to pay the difference in goods at cash 576 value, as the defendant might want them, can be made a set-off in this cause. The proof did not tend to establish a set-off, but a' payment., The account was paid, and extinguished, and there was no legal liability to pay the difference in money. The contract was valid, or it was not. If valid, it amounted to a payment of the‘account sued on, and a liability was created to pay the remainder in goods, at cash value, as defendant might want them, a portion of which .goods the defendant has already received; if invalid, the plaintiff was entitled to his suit upon the account, as though the note on Sands had never been transferred to him. In our opinion, the disaffirmance of the contract on the part of the plaintiff, by. bringing his suit after tendering back the note, did not so affect the nature of the contract, as to change a payment into a set-off, arid entitle the defendant to recover for the amount of the note as upon a moneyed demand. This was, in substance, the effect of the fifth charge, which denied the right of the defendant, under the proof in this case, to recover over against the plaintiff on account of the transfer of the note. The charge must be referred to the proof, all of which is set out in the- bill of exceptions; and as it did not tend to prove a set-off, the fifth charge was proper. The utmost the defendant can claim is, a verdict and judgment on his plea of payment. For the error in refusing the fifth charge, thereby conceding there might be a set-off under the proof, — which opinion was carried out by the court in rendering the judgment over against the plaintiff, — the said judgment, must be reversed; and the cause remanded.