
    Lloyd v. Moore.
    Where the judge, at defendant’s request, gave to the jury a certain special charge in addition to his general charge, which said special charge was erroneous, and afterwards having been requested by the jury to repeat his charge to them, repeated the general charge, but declined to repeat the special charge, there was no error in refusing to repeat the erroneous instruction.
    
      Error to the District Court of Scioto County.
    Defendants in error brought suit in the court of common pleas of Scioto county against plaintiff in error upon four promissory notes executed by him, payable to the order of Hess & Burke, and. by them indorsed and delivered to defendants in error. Lloyd claimed that there had been, as between himself and the indorsees, a total failure of consideration, and that although the notes had been transferred before due they were not taken in the usual course of trade, nor was any value given for them by plaintiffs.
    The bill of exceptions does not contain all the evidence offered in the court below, and we are not advised what the facts of the transaction may have been. There was, however, evidence tending to show that Hess & Burke were largely indebted to Moore & Welch for purchase-money for the sale of tracts of land which had been conveyed to them, and which indebtedness they had secured by a deposit of certain collateral securities.
    There was also evidence tending to prove that on the 18th of November, 1873, Hess had in his possession notes on parties in Sandusky, Ohio, amounting on their face to $23,735.50, which he proposed to get discounted and apply to the payment of what he owed plaintiffs on the land purchased from them, if they (the plaintiffs) would stand the discount. But plaintiffs declined, and proposed to take the notes as money, to be credited on what Hess owed, if he would submit to the discount on the notes, leaving the net amount to be credited for the notes $22,063.80. That this was agreed to by Hess, and the San-dusky notes were accordingly indorsed and transferred to plaintiffs, and the $29,000 in collaterals, except about $2,000 or $3,000 in the notes, were returned to Hess.
    Also evidence tending to prove that in December, 1873, at the request of plaintiffs, Hess conveyed to them six hundred and forty acres of land in Kansas ; also one hundred and sixty in Indiana, and his residence in Columbus, the latter subject to a mortgage for $6,000. These deeds were all absolute on tlieir face, but were intended as mortgages to secure plaintiffs for what Hess owed them for the land sold.
    There was evidence also in the form of letters from plaintiffs and the depositions of Hess, offered in behalf of defendant, tending to prove that the plaintiffs refused to give Hess credit for the amount of the Sandusky notes, and has never in fact done so, and that subsequently, in March, 1874, it was agreed between plaintiffs and Hess that plaiu tiffs could hold said San-dusky notes, or those that they still had, as collateral only.
    Also evidence in behalf of plaintiffs tending to prove that in February, 1874, Hess desired to get back a part of the San-dusky notes, but plaintiffs refused to return any part of them unless Hess would give other notes in lieu thereof. Thereupon, TIess, on February 20, 1874, transferred to plaintiffs the Lloyd notes now sued on, and some notes against one Thos. T. Yeager, the whole amounting to about $2,400 ; and the plaintiffs returned to Hess about $5,000 of the Sandusky notes for the same, Hess agreeing to transfer other notes to make up the amount of the Sandusky notes.
    The court charged the jury correctly upon the law of the case, and in addition to the general charge gave to them a special charge asked by plaintiff in error. Some time after the jury had retired, they came into court and requested the judge to repeat his charge to them.
    The court thereupon read over to the jury the instructions hereinbefore stated, as they were given originally, but omitting the said special charge given at the request of the defendant. And, at the request of one of the jury, read a second time the said instruction in respect to the sufficiency of proof as to the knowledge of plaintiffs to defeat a recovery. The defendant, Lloyd, being present after the court had concluded reading said instructions, inquired of the court if it was not proper to read also the said instruction given at the request of his attorney, and requested that the same should be read; to which the court replied that it was not necessary to read it again, and the same was not read.
    The special charge was as follows :
    “ If the jury shall find from the evidence that Hess voluntarily delivered to plaintiffs certain notes, to be credited on a debt not yet due, but the same were not so credited, and plaintiffs refused to so credit them, and subsequently said notes so delivered were exchanged for the notes in controversy, the plaintiffs cannot be said to be the holders of the notes in suit for value.”
    The jury found for the plaintiffs and judgment was entered upon the verdict. This judgment was subsequently affirmed in the district court.
    It is now claimed, that there was such - an abuse of discretion on the part of the judge as would warrant a re-trial of the case.
    
      Moore <& Newmcm, for plaintiff in error.
    
      W. A. Hutehms and J. W. Bcmnon, for defendants in error.
   Longworth, J.

Without doubt it was the duty of the judge at the trial, when he had undertaken to repeat his charge to the jury, to omit no material part of it, and it was defendant’s right to insist that the special charge, which he claimed to be in his favor, should, if correct, be read to the jury, together with the general charge ; but whether or not this refusal was prejudicial to defendant in such manner as to warrant a new trial we are relieved from the necessity of considering, being, as we are, unanimously of opinion that the special charge was not law.

There was evidence before the jury tending to show that when the notes sued on were transferred to plaintiffs to be credited upon their claim, they parted with valuable securities in consideration of the transfer. If this were true, defendant was not at liberty to rescind the contract, since he was not able to place his indorsees in statu quo. Under such a state of facts his right, and only right, was to insist that the amount of the notes should be credited upon his indebtedness. If the indorsement was made simply as security for an antecedent debt, the rule in Boxborough v. Messick, 6 Ohio St. 448, would apply, but the evidence not being before us, we are in the dark as to the true state of the facts. By this special charge the jury were instructed, that the plaintiffs were not the holders for value if they had broken their contract by refusing to credit the amount of the notes upon their claim. The error made by the court was in giving this instruction in the first instance, and this was prejudicial to the plaintiff alone. There was no error in refusing to repeat it..

Judgment affirmed.  