#### ANDERSON DULA *v.*J. AND C. J. COWLES.

It is error in a Judge to leave a question to the decision of the jury without some evidence bearing on such question.

Where a sum has been erroneously found by the jury against the defendant, it will not cure the error for the plaintiff to *offer*to remit the amount thus erroneously allowed, without actually doing so.

Tms was an action of assumpsit brought up by direct ap. peal from the judgment of a justice of the peace, to the Superior Court of Wilkes, where it was tried before Dice, Judge, at the last Spring Term.

The suit was brought for two parcels of pork and some articles delivered by the plaintiff to the defendants.

It was admitted by the parties that the plaintiff contracted to deliver to the defendants fifteen hundred pounds of pork on. the first of January, 18 — ; that the price to be allowed for it *520was six dollars per hundred; that part of it was to be applied to the discharge of two notes — a justice’s judgment, and a book account, which the defendants had against the plaintiff, and that the remainder of the price was to be paid, one-half in goods, and the other half in cash. It was further admitted, that no pork was delivered on the 1st of January, but that on the 9th of that month, the plaintiff delivered 270 lbs., and a credit was entered by the defendants on one of the notes for the price of that quantity; that on the 24th of the same month, the plaintiff delivered 760 lbs., when both of the notes were delivered to the plaintiff, and an order given him by the defendants directed to the officer who had the judgment above mentioned, instructing him to deliver it to the plaintiff; that the balance of the price of the pork delivered, was entered to the credit of the plaintiff on the store-books of the defendants. The plaintiff then called on the clerk of the defendants, a *Mr. Mmiri/n,*to examine and see how tire account stood on the books, when it was ascertained, by him, that there was a balance in favor of the plaintiff of §18,49.

The plaintiff then demanded this balance, which the defendants refused to pay, alleging that the whole quantity of pork had not been delivered according to the contract; saying also, that when it was all delivered, one-half of it was to be paid for in goods. The plaintiff then said he would deliver the remainder of the pork on the next day, and he would then see whether the defendants would not pay him.

The plaintiff failed to deliver any more pork, but sued out a warrant for the §18,49.

It appeared, in evidence, that seven dollars of the balance, coming to the plaintiff, was for some corn — some beef, and a raw hide, delivered by the plaintiff to the defendants.

The court charged the jury, that by the terms of the contract, as admitted by the parties,, the plaintiff was not entitled to recover any part of the price of the pork until the whole quantity of 1500 pounds was delivered, unless the plaintiff had been released by the defendants from the performance of *521the remainder of the contract; that when parties entered into a parol contract, they could alter, or modify the terms of it, if they thought proper to do so ; and that it was for the jury to decide, from the evidence before them, whether the defendants had released the plaintiff from his obligation to deliver the balance of the pork or not; that if, from the facts of the defendants’ delivering up the notes, giving an order for the judgment, and entering a credit on the books, they should believe he had so released the plaintiff, the latter would be entitled to recover for the remainder of the price of the pork after discharging the debts specified ; that as to the other articles, he had an undoubted right to recover the price, to wit, seven dollars. Defendants excepted.

"Verdict for the plaintiff for $18,49.

At the suggestion of the court, the plaintiff’s counsel offered to remit all of the recovery except seven dollars due for the undisputed articles.

Judgment and appeal by the defendants.

JSoydrn, for the plaintiff.

Mitchell, for the defendants.

Pearson, J.

When this case was before-us in August Term, 1855, 2 Jones’ Rep. 454, we decided that the plaintiff could not recover, because, after performing a part, he had refused to perform, the residue of the agreement. There- was no evidence to vary the case-in this- particular, and it was error to leave it to the jury to decide-whether or not the defendants had released the plaintiff from- his obligation to deliver the balance of the pork. Delivering up the notes, giving an order for the judgment, and entering the balance in the books as a credit to plaintiff, was in exact pursuance of the original contract, and could be no evidence of its release, or the substitution of a new one.

“ The offer” of the plaintiff’s counsel to remit the recovery to seven dollars, the amount due for the corn, beef, and raw hide, although made at the suggestion of the court, cannot *522cure tbe error. The plaintiff ought to have remitted the amount absolutely, so as not to take a chance in this court for the whole.

Per OueiaM, Judgment reversed, and *a venire de novo.*