#### WILLIAM GUDGER *vs.*JOHN R. FLETCHER.

The plaintiff sold to the defendant some cattle for ¡¡¡>50. He received from *the*defendant a promissory note for thirty dollars payable the 1st of January, ensuing — and a bank note for twenty dollars, which was to bo returned, if found not to be good, and the defendant was to have credit until the 1st of January. The bank note was returned as also the due bill, which was destroyed by the defendant, who then offered to pay ten dollars and give his note with surety for $40, payable the 1st of the next January. The plaintiff refused to accept them. *Held,*that the plaintiff could not sue the defendant in a *quantum valehal*until after the 1st of January.

A due bill, though written with a pencil and not in ink, if legible, is good.

Appeal from the Superior Court of Law of Henderson County, at a Special Term in June 1S46, his Honor Judge Bailey-presiding.

This was an action of assumpsit on *quantum, valebat,*for cattle sold and delivered to the defendant. Plea, the general issue. The plaintiff introduced a witness, who testified, that the defendant stated to him, that he had bought the plaintiff’s cattle for the sum of fifty dollars, and that, in payment therefor he gave his due bill for thirty dollars, on which the plaintiff agreed to wait until the 1st of January following, and the balance he paid in a bank note, which the plaintiff at first hesitated to accept ; upon which he told him, that if it were not good, or did not answer his purpose, he would take it back and give him another — that, sometime afterwards he met the plaintiff, who told him the bank note was worthless and handed it back, and also handed back the due bill, which had been written with a pencil, and which, on that account, the plaintiff alleged was • not good — that the defendant then offered to give the plaintiff ten dollars and secure the balance of the debt, which was disagreed to by the plaintiff and nothing further was done. Another witness for the plaintiff testified, that he was present when the plaintiff returned the bank note, and he gave *375substantially the same account of what then happened between the parties, as had been stated by the defendant to the first witness, adding only that when the due bill was handed back, the defendant tore it up.

The defendant then introduced a witness, who testified, that the sale of the cattle was made upon the following conditions: First, that the defendant was to give his due bill, payable to the plaintiff the 1st of January thereafter, with the witness as surety, which he did and the same was accepted by the plaintiff; Secondly, that the defendant was to pay twenty dollars, which he then had, and, if it did not answer the purposes of the plaintiff, he was to re.turn it to the defendant, and wait till the 1st of January for the said sum.

The Court instructed the jury, that, according to the original terms of the contract, if they had been complied with by the defendant, the plaintiff could not have recovered in this case, because he had commenced his action before the 1st day of January, upon a *quantum valebat;*but that, if the jury believed the account given by the witnesses, of what took place between the parties, upon the offer of the plaintiff to return the bank note, the special contract was done away with, and the plaintiff then had the right to sue immediately and declare upon a *quantum valebat.*The plaintiff had a verdict and judgment, and the defendant appealed,

¿V. *W. Woodfin*arid *Edney,*for the plaintiff.

*Baxter,*for the defendant,

cited *Thompson*v. *Morris, 2*Murph. 248, and the authorities there cited.

Daniel, J.

The Court told the jury, that what took place between the parties, upon the offer of the plaintiff to return the bank note, caused the special contract to be done away with, and the plaintiff had the right to sue immediately on the count for a *quantum valebat.*It docs not seem to us, that the plaintiff had a right to sue before *376the first of January following. The due bill for thirty dollars, although written in pencil, if legible, was good. The law does not require a note or *bond to be*written in ink: it is done generally, as the most convenient mode and the most likely to perpetuate the contract. *Story on Bills, p.*33, 34, 53. The bank bill was to be taken back if the plaintiff did not like it, and the defendant was then to have time until the first of January following, to pay that sum also. The defendant, however, on the return of the bank bill, and the surrender to him of his ■note for thirty dollars, offered to give his note with surety for $40, payable the 1st of January following, and ten dollars in cash. This offer was rejected by the plaintiff. It seems to us, that the defendant tendered performance .of the contract on his part, and that the plaintiff, because he refused to accept the defendant’s note with surety for forty dollars, and the ten dollars in cash, had not a right immediately to sue on a *quantum valebat.*The defendant was entitled to time to pay the $50, until the first of January following, to-wit, 1845.

The judgment must be reversed, and a new trial granted.

Per Curiam. Judgment reversed and new trial.