#### Fellows and Another *v.*Kress, for the Use of Marshall.

In assumpsit by *JL.*against *B.,*one of the questions raised by the pleadings was,' whether a certain note executed by the former to the latter had been satisfied. It appeared that *Jl.*had transferred- certain property to *B.'s*ageiit, and that the latter had thereupon delivered the, note to .the -former. *Held,*that such delivery of the no.te was no.t conclusive evidence of its payment, and that testimony.by the defendant tending to prove its nonpayment was admissible. •

*Jl.*being indebted to *B.*agreed with him in writing to sell him certain boats and cargoes, and *B.*in consideration therebf promised that he would forbear to sue,' &c., and, would constitute *JL.*his agent to sell the property and remit the proceeds, &c.; and, by the agreement, if *JL.*failed to remit, &c., *B.*had a right to annul the contract. At the time of making said agreement, *Jl.*executed to *B.*a bill of sale of the property, and the latter. , gave the former a power of attorney'to sell the same, *See. Held,*that the three instruments of writing formed but one'c.ontract, and thiit *B.’s*right to annul, &c. extended to the whole.

*537*Thursday, May*27.

APPEAL from the *Lawrence*Circuit Court.

Sullivan, J.

The proceedings in this case • were commenced by *Kress*■ under the -act relative to foreign attachments. The appellants -appeared in the Court below and entered special bail. *Kress*thereupon' declared against- them in' assumpsit. The facts -of the case, so far as they are necessary to be . stated, were, that *Kress*being, indebted to the appellants in *&■*large- sum of mo.ney, part of which was by promissory note bearing ..date the 21st of *December,*1836,' for- the sum of 8,618 dollars and' 89 cents, and being also largely indebted to various other persons,-on ,the 9thtof *March,*1837, entered into an agreement with the appellants, by which he undertook to' sell and 'transfer to them three flat bottomed boats loaded with pork, bacon, -lard, *Sac.,-*then ready for market, and they in consideration, that he would do so, promised that th.ey .would forbear to sue,'&c., and that .they would constitute him their agent to sell said boats and cargoes and remit,to them the'proceeds. They furthermore-undertook to make such distribution of the proceeds among the creditors of *K.*as he should direct;-and if *K.*should fail, to remit within1 a reasonable time,- it was expressly agreed that the appellants should have the' right to annul said contract; and proceed to collect their debt by due course of law. - Simultaneously with the execution of .said agreement, a bill of sale from *K.*to the appellants transferring the said boats and their cargoes, and a power of attorney from the appellants to *K‘.*to sell and remit, were also executed. *K.*took possession of the boats and cargoes; and having failed to pay over according to the expectation of the appellants,, they despatched'an agent in the month of *June,*1837, in pursuit ' of him, with full power to annul the contract and bring suit against *K.*for the debt due" to them. On the -7th of *.July*following, the agent having found K.,„ the contract was annulled, and *K.,*to avoid arrestj delivered to the agent of the appellants 4,170 dollars in depreciated, paper, and transferred to him two boats and their contents. The agent thereupon .delivered to . *K.*the - promissory note for 8,618 dollars and 89 cents! ,

The declaration contained three counts. The first was on the special agreement of the 9th of *March,*1837, alleging *538that large sums of money belonging to *K.*had come to the possession of the appellants, for which they had refused to account. The second count was' indebitatus assumpsit for pork, bacon, lard, &c. sold and delivered. The. third- was for the proceeds of a certain note drawn by *E. Gale*for the sum.of 5,000 dollars, for which appellants had refused to account. The defendants (the ■' appellants -in this Court) pleaded, 1st,-non" assumpsit; 2dly, payment,. with special matter of set-off containing, amongst, other things, the note for 8,618 dollar’s and 89 cents as a demand against *IL-*The plaintiff, according to the statute which allows several replications, amongst others; replied to - so much of the second plea of defendants as related to the nóte for 8,618 dollars and 89 cents, that on the-dáy of --he delivered to one *B. J.*Adams, the agent of said TV..and 0. Fellows, twro flat bottomed boats loaded with pork, bacon, lard, &c. in full satisfaction and discharge of said note, and which were accepted and received by them, &c. Rejoinder, denying the accord and satisfaction. ■

The issues were tried by a jury. Verdict and judgment for the plaintiff. ■ ■ -

On the trial, the plaintiff in the Cciurt below having proved the transfer of the boats and cargoes to the agent- of the appellants, and the delivery of the noté for 8,618 dollars and 89 cents to him by the agent, the defendants offered to prove that after the boats and cargoes had been disposed -of by them, and the proceeds received by them,<2T. called on them at *Louisville*for an account, and “ spoke of” 'the said note as being unpaid. The plaintiff objected to the testimony, and the tíourt excluded it. We think the testimony should have been admitted. It bore directly upon the issue between the parties. The delivery of the note to *K.*by the agent of the appellants, was not conclusive evidence that it had been paid or discharged. The tendency of the testimony offered was to prove that it was still unpaid. Whether the testimony, if allowed, would have produced a different result, we do not know. In a transaction, so confidential in many of its parts -as this was, it may have done so. That, however, is not for us to determine at present. *539'The testimony was admissible under the- issue, and the appellants should have had the benefit of it. _

*J. W. Payne*and *R.*Crawford, for the appellants.

*J. Q. Marshall*and’JR. *W.*Thompson, for the appellee.

The Court also erred in -refusing to give certain instructions -to- the jury.' The record informs us,,.that the defendants in. the Circuit Court moved the Court to-instruct the jury, that, the three-papers shown in evidence by the plaintiff dated *March*the 9th,4 837, viz.; the agreement signed-by the plaintiff and the 'defendants, the bill of .sale by the plain■tiff to the - defendants, and the power of attorney by the defendants to the plaintiff, constituted but one contract, and the right of annulling named in the first, was a right to annul the whole. The Court refused so to instruct the jury. We are of opinion that the instruments of writing referred to-constituted but one contract. The bill of .sale and the power of attorney were executed at th'e time the agreement was entered into, and in ^ conformity with its provisions. They Were parts of the same transaction. The right to annul was simply a right to restore the property to *IL,*and to proceed against him by legal means for- the recovery of the debt due the' appellants. To annul a part of'the contract. without annulling the whole, would be contrary to its spirit. ,

*Per Curiam.*

The' judgment is., reversed with .costs, Cause remanded, &c.