
    Anderson v. Hunter.
    Pleading. Debí. Payment A. sold a horse to H. for $175 — H. was to pay $75 cash, and give an accepted order on 0. for the remaining $100. The cash was paid, the accepted order given, and the horse delivered. Before the payment by C. of the order, H., upon pretence of the unsoundness of the horse, procured C. not to pay the order to A., but to settle with himself. A. took no step to enforce the payment by C. of the order to himself, but brought this action of debt against H. for what remained due for the horse.
    Held: The debt for the horse was extinguished by the terms of the contract, and A. cannot recover in this form of action; his remedy must be sought in a different form of action.
    FROM CAMPBELL.
    Appeal in error from Circuit Court of Campbell, May Term, 1872. J. H. RANDOLPH, J.
    H. C. GibsoN, for Anderson.
    In the fall of 1864 the plaintiff sold a horse to the defendant for $175, $75 of which was paid in money, and an order for $100 on one T. T. Coffin given to the plaintiff in payment of the balance. This order Coffin accepted, and it was handed to him. About three weeks after this Coffin and defendant met, and defendant learning that Coffin had not paid plaintiff the $100 due on the order, directed Coffin not to pay plaintiff the order. Consequently Coffin did not pay it to plaintiff, but paid it to the defendant; thereupon plaintiff brought this action against the defendant for the balance on the horse.
    The one question in the case is, whether said order, under the circumstances, is such a payment as bars this action? The Circuit Judge charged the jury that the acceptance of the order was “an extinguishment of the debt, and that if the defendant afterward directed Coffin not to pay the amount of said order to the plaintiff, and if said request was made after Coffin had accepted said order, and that the defendant collected the same from said Coffin, this would not revive the liability of the defendant to Anderson for the horse unless Anderson had assented thereto, and he would not be liable in -this form of action, but might be liable in another action.”
    1. Was this order, under the circumstances, “an extinguishment of the debt?” “A note of a third person being passed as payment, and being void, having been given for a gambling consideration, the value of the property sold may be recovered without recourse to the maker of the note.” 3 U. S. Digest, 122, sees. 38 and 40.
    “An order for money, if accepted as payment, is sufficient to discharge a debt if no fraud intervenes or no failure happens to vitiate the transaction.” Harrison v. Hicks, 1 Port., 423, cited in 3 U. S. Digest, 121, sec. 19. This case is exactly in point. The failure to surrender the order will not prejudice the plaintiff. 15 Conn., 306, cited in 2 U. S. Dig. (Sup.), 507, see. 14. The order was given to Coffin the day of the horse-trade, and plaintiff could not produce it.
    2. Did not the action of the defendant in doing all he could to rescind the contract give the plaintiff a right to elect against whom he would proceed, Coffin or the defendant? And is not the defendant estopped to deny the plaintiff’s right .to elect? And will the defendant be allowed thus to take advantage of his own wrong?
    Cocke & Henderson, for Hunter.
   Nichoi.son, C. J.,

delivered the opinion of the Court.

Anderson sued Hunter on an account for $100, it being the balance on the price of a horse sold by Anderson to Hunter in 1864. The price of the horse was $175, for which Hunter paid in cash $75, and gave Anderson an order on T. T. Coffin for $100, which was accepted by Coffin. Shortly after the trade Hunter saw Coffin and told him not to pay the order to Anderson, alleging that the horse was unsound. Coffin settled the order with Hunter. Ho step was taken by Anderson to collect the order from Coffin, but he sued Hunter in 1871 for the balance on the price of the horse. Hunter resisted the suit on the ground that by the terms of the contract Anderson sold him the horse and agreed to take in payment $75 in money and an accepted order on Coffin for $100, and that upon the payment of the money and the delivery of the order the contract was executed and the horse paid for. The court charged the jury that if this was the contract, then this would be an extinguishment of the debt for the horse, and the plaintiff could not recover in this action; and that the liability of Hunter on the original debt would not be revived by the fact that Coffin settled the order with Hunter, unless Anderson had assented thereto, and Huntér would not be liable in this form of action, but might be liable in another action. There was conflict in the testimony as to the terms of the trade which was determined by the jury to be as contended for by Hunter. • If the contract was, as found by the jury, that Hunter was to give Anderson $75 in money and a specific order on Coffin, by him accepted, for $100 in payment for the horse, upon the payment of that money and the delivery of the order, the debt for the horse was extinguished' by the very terms of the contract, and of .course could not afterward be revived by any fraudulent arrangement between Hunter and Coffin as to the settlement of the order; but, as charged by the judge, Anderson’s remedy was in a different form of action.

We see no error in the charge, and affirm the judgment.  