MONNIER . MIZNER.

"The defendants having moved for a new trial, and the same having been argued, and the court having decided that the said motion be allowed and a new trial be granted, unless the plaintiff remit from the damages awarded all except five hundred dollars, being the rent due under the written lease of May 1, 1867, and on which proceedings were instituted and judgment rendered before the commissioner for non-payment of rent, and also the rent due from January 10, 1866, to about March 1, 1866, the time of burning of the mill, (the part so deducted being what was claimed and allowed for rent between the burning of the mill in March, 1866, and the commencement of the lease, in May, 1867,) and the plaintiff now elects to make such deduction, and does hereby remit all the damage except five hundred dollars, and it is now by the court ordered and adjudged that the plaintiff do recover against the said defendant the sum of five hundred dollars damages for rent as aforesaid, and that he have judgment therefor, with costs to be taxed."

This the plaintiff elected to do. The defendant brought error, and alleged for error the including in the judgment of the rent due from January to March, 1866. When the case was called, the defendant below, (the plaintiff in error) claimed that it was erroneous to include in the judgment any rent except that due on the last lease, as the eviction must have been on account of that alone.

Moore & Griffin, for plaintiff in error.

T. Romeyn, for defendant in error.

The Court held that the judgment in the case was supported by the declaration, and that, therefore, the judgment must be affirmed, unless the court could take notice of the facts stated in the order denying the motion for a new trial for the purpose of determining the legal question of the

DUDGEON v. HAGGART.

right to include in the judgment rent owing before the lease under which the proceedings were taken.

But, held further, that the recitals in said order were no part of the record in error, and could not supply the want of a bill of exceptions, and consequently there was nothing before the court to show whether that the eviction was or was not on the last lease alone, and the legal question suggested was, therefore, not in the case.

John Dudgeon v. Allen Haggart.

Practice in Circuit Court: Construction of written instruments: Payment. In an action by a surety for money paid, defendant offered in evidence the following receipt signed by plaintiff: "I have this day received of A. H. $500 in money, a note for $231, and also an assignment of his interest in a claim against the Rail Road Company to secure me $269, agreeable to said instrument of assignment, which is in full of all claims and accounts against said A. H. to date."

The assignment referred to was appended to the receipt and referred to a claim of $875, which was to be applied towards the payment of said $269 when collected. Both instruments were made at the same time, and related wholly to the same subject matter. There was no evidence of its collection.

Held, That it was the duty of the court, and not the jury, to interpret them, and in so doing to read and construe them together as parts of a single transaction.

Held further, That said receipt and assignment did not, as matter of law import payment.

Heard July 11th. Decided October 7th.

Error to Kalamazoo Circuit.

This was an action by plaintiff to recover a sum of money paid by him as surety upon a note.

The declaration contained a special count and the common counts.

The defendant pleaded the general issue and gave notice of special matter.

A verdict was rendered for the defendant.

The facts are stated in the opinion.

DUDGEON V. HAGGART.

Stuart, Edwards & May, and H. F. Severens, for plaintiff in error.

1. Misapprehension of the court as to a material fact, and the direction to the jury accordingly, are said to be unmistakable grounds for reversal of the judgment.-1 Bailey, 482, 235; 1 Rep. Const. Ct. 200.

2. A receipt purporting to be a payment in full, together with a conditional assignment of a certain claim, was offered in evidence, and submitted by the court to the jury for their consideration. This was error. It was a matter of law; and for the court and not for the jury.-2 Ind. 617; 4 Id. 154, 248; 2 Pars. on Cont. 4 and note b.

Where there are two instruments relating to to the same transaction, they should be construed together.-4 Blackf. 341; 1 Ind. 267; 11 Id. 236; 13 Id. 496; Walk. Ch. 56, 206, 361; 1 Mich. 202, 421; 2 Doug. 16.

3. It was error to instruct the jury that as matter of law the parties intended the assignment as payment, and not as collateral security.

These papers construed separately or together do not denote payment. They mean security for the sum of $269, and nothing more.

4. The giving and accepting of a smaller sum of money in payment or satisfaction of a larger one due, is not a valid discharge, and can not be pleaded either as payment or as an accord and satisfaction.-9 Johns. 332; 2 Id. 448; 27 Me. 370, 378; 20 Conn. 559; 2 Strobhart, 203; 5 Gill. 218; 6 Cush. 150; 3 Barb. Ch. Rep. 621; 15 Ind. 371.

5. It is error to give contradictory instructions to a jury-also an uncertain charge.-12 Vt. 60; 1 Met. (Ky.) 83; 15 Gratt. 230.

a. As is implied in the language of the court, we requested the court to construe the writings and to say that they imported security and not payment. Now if we were in error in assuming that it was the business of the court

DUDGEON v. HAGGART.

to construe these writings and it was a question for the jury, the court committed error in charging as it did that the language of the papers imported payment, and not security.

If, in response to a request which is erroneous, the court should charge erroneously upon that point, the party in-. jured may well complain.-32 Ill. 281.

b. If the charge means anything, the jury were permitted to inspect and examine these writings to see if they imported full payment and satisfaction, and at the same time the jury was told that these writings meant payment and not security.

May & Buck, attorneys for defendant in error, furnished no brief.

GRAVES J.

Dudgeon sued Haggart in the court below to recover an amount paid by him as surety for Haggart upon a note of $1,300 to Woodbury, Potter and Wood. The declaration embraced the common counts in assumpsit, and a special count containing the facts connected with the undertaking.

The damages were laid at $1,000. The general issue was pleaded, accompanied by a notice of set-off, and that the defendant would give in evidence on the trial under the issue, that on or about the 10th of May, 1865, the defendant, to secure the plaintiff the payment of $269, or that portion of it not theretofore or otherwise paid or secured, did, in writing, sell and assign to the plaintiff the claim for $825, then held by defendant against the New York and Erie Rail Road Company, and authorized the plaintiff to collect it and out of the proceeds to pay himself whatever of the $269 remained unpaid, and required him to account for the balance; that on the 27th of September, 1865, the plaintiff settled, withdrew and abandoned the claim against

DUDGEON v. HAGGART.

the company, and received from them in full for said claim $262.50.

It does not appear that upon the trial any question was made as to the original liability of Haggart, but it seems to have been contended on the part of the latter that such liability was subsequently extinguished by what the defendant called a full settlement on the 10th of May, 1865. It appears that the parties met together at that time for the purpose of effecting some adjustment of the business connected with the payment of the note by the plaintiff, and, that after some controversy, an arrangement was effected, which was reduced to writing in two parts; one being executed by Haggart, and the other by Dudgeon.

One Stafford, a witness called for the defendant, testified that he was present at the meeting of the parties on the 10th of May, 1865; that the plaintiff presented the note which had been given to Woodbury, Potter & Wood, and claimed that he had paid its face and some interest, and agreed that he would throw off $300 and the interest, leaving his due just $1,000; that the defendant paid the plaintiff $500 in money, and a note of William King's of $231, and gave the plaintiff an assignment of a claim for damages against the New York and Erie Railroad Company; that it was then and there agreed between Dudgeon and Haggart that the $500 in money, the King note and the assignment should be in full payment and satisfaction of Dudgeon's claim against Haggart; that Dudgeon agreed to give Haggart a receipt, and that the witness called at Dudgeon's office and received it.

The witness produced the receipt, and also identified the assignment, which was attested by him.

The counsel for the plaintiff admitted that the transaction between the parties on the 10th of May was correctly stated by the witness Stafford, except as to the reception of the cash, note and assignment in full payment and satisfaction.