#### SAMUEL RODGERS *vs.*JOS. B. DAVENPORT.

Where A and B had come to a settlement, and agreed upon- a particular sum, which B was entitled to as a credit, which was accordingly entered on a bond which A held against B, and afterwards upon a complaint by A that the credit was too large, B said “ go and alter it, and if you can show me the mistake, it will all be right ;• and if not, the credit must be put back or altered back.” *Held*in a suit brought on the bond, that-it was incumbent on A to show on the trial that there was a mistake in the settlement, or that he had, before that, shown such mistake to B.

This was an actioh by a warrant, brought by successive appeals to the Superior Court of Tyrrel, where it was tried at the Spring Term, 1855, before his Honor Judge PeesoN.

The plaintiff produced a bond, payable t,o him, for fifty-five dollars due 2Tth of December, 1851, on which was an endorsement of a credit of $43.05, which however had been erased and made to read $4.05. This was explained thus : the parties having come together for a settlement of accounts, upon a com-' putation it was agreed and settled that the defendant was entitled to a credit of $4-3.05, which was accordingly entered on the bond in question. A few days afterwards, the plaintiff met the defendant and informed him that there was a mistake in their settlement, and that the credit ought to he for four dob-lare and five cents, instead of the sum entered, and requested' the defendant to go with him a short distance to where his papers were and he would show the error: the defendant declined going, but said “ go and alter it, and if you can show mo the mistake, it will he all right; and if not, the credit must be put back” or “altered back at the same time Davenport, the defendant, sent his step-son to witness the alteration.

There was no further evidence to show that there was a mistake in the credit as first entered.

*139Upon this state of facts bis Honor instructed tbe jury that the question for them to try was, what was the credit to which the defendant was really entitled? That the agreement on the sum of $43.05, and the entering of that sum on the bond, entitled the defendant to that amount as a credit, unless, acord-ing to the subsequent agreement, the plaintiff had shown to the defendant the mistake alleged by him, or was able to show it there, upon the trial; to which instructions the plaintiff excepted.

Yerdiet for the defendant. Judgment and appeal.

Winston, *jr.,*for the plaintiff.

Heath, for the defendant.

Nash, C. J.

His Honor, who tried the cause below, would have been guilty of gross error if he had charged the jury otherwise than as he did. The plaintiff contended that the agreement between the parties as to the endorsed payment, was divisible into two contracts ; one executed, the other executo-ry- — -that as soon as the alteration of the endorsement was made by the plaintiff it was final, that is, executed and bound both parties; but as to the restoration of the original endorsement it was executory and had never been done. There is no foundation in law for any such distinction between the parts of the agreement: the whole was one transaction — one agreement: upon a settlement of accounts between the plaintiff and defendant it was agreed between them, that the former owed the latter the sum of $43.05, and that this sum should be endorsed on the note, now in controversy, as a payment to that amount; subsequently the plaintiff, alleging that there was an error in the settlement, and that the credit ought to be $4.05, the defendant agreed the plaintiff should alter the endorsement to the latter sum, upon the express condition, that if he did not show' him that the mistake as alleged did exist, the endorsement should stand as it was; to this the plaintiff assented. Without pretending so far as is disclosed by the case that he ever showed to the defendant that there w'as any error in the settlement, 11% brought his action: nor did he on the trial of *140the case then show that any error did exist. The defendant is entitled to a credit on the note to the extent of the sum originally endorsed.

Allowing the payment of $43.05, there would still be a small sum due the plaintiff: as, however, the jury gave a general verdict for the defendant, and it forms no part of the plaintiff’s bill of exceptions, we presume there was evidence of other payments discharging the note, and that the only question intended to be brought before-us was as to the endorsed payment.

Per Curiam. Judgment affirmed.