
    Sperry v. Miller.
    The lessee of a farm, on the day after $65 had become due and payable for an installment of rent, entered into a written contract with his lessor for the surrender of his unexpired term, in consideration of which, and other stipulations, the lessor agreed to pay at a subsequent day, and actually did pay, $550; Held, First. That the contract did not operate as a release or extinguishment of the rent that had become due; Second. That from the contract and a receipt thereon endorsed of the subsequent payment of the $550, no legal presumption arose, either that the rent had been previously paid, or that the amount was allowed when the receipt was executed; Third. That these facts were properly submitted to the jury, with instructions that it was a question of fact for them to determine whether, considered in connection with all the evidence in the case, they did not warrant a presumption of the payment of the rent.
    Appeal from the Supreme Court. On the trial at the Monroe circuit, before Mr. Justice Wells and a jury, the plaintiff introduced in evidence a lease from him to the defendant, Samuel Miller, of a farm in Monroe county, for the term of five years, ending on the 1st day of April, 1848, reserving the yearly rent of $180, payable, $65 April 1st, 1844, $65 October 1st, 1844, and $65 on the first days of April and October of each year until the whole rent was paid (the defendant, Henry Miller, having signed the lease as surety for the other defendant), and claimed to recover the $65 which became due April 1st, 1846, for the -rent for the half year ending October 1st, 1845, and interest thereon.'
    The' defendants thereupon introduced in evidence a contract in writing between the plaintiff and the defendant, SamueLMiller, dated April 2d, 1846, the day after the installment of rent sought to be recovered became due, by which Miller agreed “ to give up ” the remainder of the term created by the lease, and assign to the plaintiff a contract for the purchase by Miller of thirty-two acres of land, on which contract $350 had been paid; possession of the farm, except the house and barn thereon and of the thirty-two acres, to be given to the plaintiff immediately, and possession of the house and barn to be given by the fifteenth of April then instant, and the plaintiff to have all the crops then growing on the farm and the thirty-two acres.; in consideration of which the plaintiff agreed to pay Miller $550 by the fifteenth of May then next, and permit the latter to take certain wood from th,e thirty-two acre lot.
    The plaintiff then read in evidence a receipt signed by Miller and indorsed on the agreement in the words following 1
    “Received of Orrin Sperry the' within mentioned five hundred and fifty dollars.
    (Signed) “ Samuel Milleb.
    
      “ Rochestee, May 2, 1846.”
    and proved the payment of the whole $550 to Miller on the day of the date of tile receipt.
    The defendant, for the purpose of showing that the installment of Tent in question had been paid, called- and examined three witnesses. One of these witnesses testified that about a year previous to the trial he had a conversation with the plaintiff in relation to his transactions with Miller, in which conversation the plaintiff said that he and Miller Ijad been together in the city of Rochester, where he was trying to make a bargain with Miller to buy him out, and could not agree, when one of them startéd to leave and the other called him back, when they finally made a bargain and money was paid over. The witness further testified that he could not recollect that it was stated in this conversation what the bargain was, or whether Sperry or Miller paid the money, or what it was paid for, or the amount paid.
    Another witness testified that in a conversation he had with the plaintiff the next winter after the lease was given up, the latter said the Millers were trying to cheat him, and that he would have the rent due him at the time he took back the farm; that he, the witness, asked him why he had paid back the $50 which Miller had paid him if he had not received the rent, and that the plaintiff replied that he lent it to him, Miller; that the witness then inquired if Miller asked to lend the money, and that the plaintiff replied no, but that by what he learned of Miller he knew he wanted it.
    The other witness testified to a conversation he heard about the spring of 1848, between his son and the plaintiff, in which the latter complained that Miller had not worked the farm in a workmanlike manner, which had caused a conclusion on the plaintiff’s part to buy Miller out; that the plaintiff said that Miller had moved from the farm and he was in possession; that he had paid Miller a certain amount of money and got clear of him.
    The judge charged the jury that, in determining whether the installment of rent claimed had been paid, they were at liberty to inquire whether the plaintiff would have paid the $550, voluntarily and without deduction, if at the same time Miller was in his debt for the $65 rent; that whether the payment of this rent was to be presumed from the fact that after it became due the plaintiff paid the $550, was a question of fact, which was submitted to the jury to decide; that they had the right to take these circumstances into consideration in connection with the testimony given by the defendant, with the view of showing payment of the rent claimed, and from the whole to determine the question of the payment.
    To so much of the charge as submitted to the jury the question of fact whether the payment of the rent claimed was to be presumed from the payment by the plaintiff of the $550, the plaintiff excepted.
    The plaintiff requested the judge to charge that the plaintiff was entitled to recover, unless the testimony of the defendant’s thi’ee witnesses satisfied them that the rent had been paid. The judge declined so to charge and the plaintiff excepted.
    The jury found a verdict for the defendant, and the plaintiff, on a case setting forth the above exceptions, moved the Supreme Court, at general term in the seventh district, for a new trial, which motion was denied; and judgment having been entered on the verdict, the plaintiff appealed to this court.
    At a previous trial of the cause, after the lease, the agreement of April 2d, 1846, and the receipt for $550, dated May 2d, 1846, indorsed on the agreement, were introduced in evidence, the plaintiff was nonsuited on the ground that by presumption of law the installment of rent claimed had been paid and canceled ; and, on appeal to this court from the judgment upon the nonsuit, the judgment was reversed and a new trial ordered on the ground that the contract of April second did not operate as a release or extinguishment of the rent which had then become due, and that from the receipt indorsed on the contract no legal presumption arose, either that the rent had been previously paid or that the amount thereof was allowed when the $550 was receipted-
    
      M. S. Newton, for the appellant.
    
      J. C. Cochrane, for the respondents.
   Bowen, J.

The appellant’s counsel claims that, on the former appeal, this court held in effect that the making of the contract of April 2d, 1846, and'the receipt of May second, indorsed on the contract, constituted no evidence proper to be taken into consideration by a jury, with other testimony, on the question whether the installment of rent sought to be recovered had been paid or satisfied. But in that he is mistaken. On the first trial of the action the plaintiff was nonsuited; and on the appeal to this court from the judgment rendered on the nonsuit, the only question before the court was, whether the contract and receipt indorsed thereon, unexplained, proved that the claim for rent had been paid or canceled, or, in other words, whether the evidence that it was paid or canceled, furnished by the contract and receipt, was of that conclusive character which authorized the judge presiding at the trial to take the case from the jury and pass upon it himself. The court did not hold that the evidence was not sufficient to be submitted to the jury, and to authorize them to find therefrom that the rent had been paid, as no such question was presented by the case.

On the last trial it was shown that the plaintiff actually paid the $550 when the receipt for that amount was given, consequently no presumption remained that the installment of rent was accounted for and allowed as a part of that payment. But the facts remained, that the day after the rent became payable the plaintiff bound himself to pay to Miller $550 in one month thereafter, and at the expiration of the month paid the amount. It is at least singular that he should do so, when at the same time $65 was due and payable to him from Miller; when his acts were perfectly consistent with the supposition that the $65 had been previously paid. That it was competent to submit these circumstances to the jury, on the question whether the $65 had not been previously paid, and for the jury to consider them with the other testimony bearing upon that point, doea not, I think, admit of a question. The only question in the case was that of payment; and that there was sufficient evidence on that subject to be Submitted to the jury was virtually conceded on the trial, as the court was not asked to take the case from the jury, and the plaintiff’s counsel asked the court to charge that the plaintiff was entitled to recover, unless they found from the testimony of the three witnesses called by the defendant that the rent had been paid. That the judge was right in refusing so to charge I have endeavored to show above.

The judge charged the jury, in substance, that whether the payment of the rent was to be presumed from the fact that after it became due the plaintiff paid $550 was a question of fact for them to decide, and this part of the charge was excepted to. Whether this instruction, taken separately from the remainder of the charge, can be sustained, depends upon whether, in case the defendant had not introduced the oral testimony of the three witnesses called by him, the jury would have been authorized to find as they did; or, in other words, whether, in such case, the judge would have been justified in directing a verdict for the plaintiff for the amount claimed, thus taking the case from the jury. . I do not think it is necessary to pass upon that question. In the instruction complained of, the judge did not direct the jury affirmatively that they could find the rent paid solely from the fact that $550 had been paid, and this part of the charge is immediately followed by the direction that they had the right to take these circumstances (the making the contract and payment on it of the $550) into consideration, in connection with the testimony given by the defendant with a new of showing payment of the rent, and from the whole to determine the question of payment. From the whole iharge the jury could not but have understood that they must take into consideration all the evidence in the case, as well the testimony óf the witnesses introduced by the defendant ás the other circumstances, in determining the question of payment. In considering whether a single proposition contained in a charge is erroneous, it is to be construed in connection with the context. The whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, is to be considered in determining whether an error has been committed. Admitting that the part of the charge excepted to, when isolated from the context, is erroneous, yet a new trial is not to be granted for that cause, when it appears, as in this case, that the jury could not have been misled thereby.

On the whole, I think that the judgment appealed front should be affirmed.

Denio, Ch. J.

I think it a fair construction of what took place at the trial to consider the plaintiff as having claimed that there was nothing to submit to the jury and that the judge ought to direct a verdict in his favor; and the question is whether it was a case calling for such a direction. On the former trial the plaintiff was nonsuited, and we held that decision erroneous. The rent claimed having become due and payable was not affected by the surrender; and the other collateral terms of the agreement made on the occasion of the surrender, including the payment by the plaintiff of the $550, did not amount to a release or discharge of the rent which had accrued. But the defendant had pleaded the general issue, under which payment might, be given in evidence, and he was entitled to submit to the jury any facts from which it would be lawful for them to find that' the defendant had paid the rent, if there were any such facts in the case. I am of the opinion that the jury might fairly presume from the facts given in evidence that the rent now sued for had been paid. By the lease the defendant bound himself to pay the plaintiff semi-annually the sum of sixty-five dollars for rent. On the 1st of April, 1846, a semi-annual payment became due. There is no direct evidence whether it was then paid or was suffered to remain in arrear; but on the next day an arrangement was made by which the claim for the future rent to the end of the term was adjusted. The surrender of the lease was ira effect an agreement to accept that arrangement in lieu of the rent afterwards to become due. Now, it is well settled that where rent is specifically received for a subsequent period, the presumption is that the prior rent has been paid. (Decker v. Livingston, 15 John., 479.) By the terms of the agreement of surrender the plaintiff' was to have all the crops growing on the farm. These were to some extent the fruits of the cultivation of the premises during the time this rent accrued. It is somewhat improbable that such an agreement would have been made if the rent were left unpaid. But what is more important, the plaintiff agreed to pay the defendant $550 on the first of May following, less than one month from the time of the surrender, and he actually paid the money about the time agreed on. This payment was in consideration of the surrender and of the purchase of an equitable interest in another parcel of land. To my mind, it is in the highest degree improbable that this money would have been promised and paid to the full amount while there was a sum of $65 yet due from the plaintiff to the defendant for the rent of the same premises. The adjustment of that rent, which had become payable only the day before, was a subject so intimately connected with the terms of the surrender and with the extinguishment of the relation of landlord and tenant between the parties, that I think the jury might reasonably find that its satisfaction was parcel of the transaction. The presumption is about as strong as that which obtains where one gives another a promissory note; and there it has frequently been held that the fact furnishes prima facie evidence that a simple contract debt, proved to have been antecedently owing by the payee to the maker, had been discharged. (Defreest v, Bloomingdale, 5 Denio, 304; Gould v. Chase, 16 John., 226.) The parol evidence in this case added something to the presumption, though of itself it was not strong. The plaintiff, about the time of the transaction, had been heard to say that he had paid the defendant a sum of money to get rid of him. If the surrender and adjustment was made with a view to put an end to the relations which had existed between the parties, it is improbable that anything remained out of which a claim by one of them against the other, in respect to the same subject, could be made. If there was an unpaid half year’s rent to be collected, the plaintiff could scarcely be said to be rid of the defendant. "Upon the whole, although the papers executed did not establish a flat bar to the claim which the court could act upon as matter of law, they did, with the other facts proved, lay the foundation for a presumption of fact which the jury might consider.

The judgment should be affirmed.

Comstock, J., dissented; Johnson and Paige, Js., doubted; all the other judges concurring,

Judgment affirmed.  