
    GHEEN VS. HEYBURN.
    A party who does not ask for specific instructions as to the amount of evidence required to overturn the presumption arising from a settlement, cannot complain if none were given.
    Error to Common Pleas of Chester County. No. 22 July Term, 1863.
    The facts of the case appear in the charge of the Court by
    Pearson, P. J.:
    This suit is founded on a negotiable promissory note for $1,500, drawn at 5 days payable at the Bank of Chester Co., dated Sept. 16, 1854, signed by Levi A. Gheen, payable to and endorsed by John G. Chambers in blank, and lifted by Wesley Matson, who transferred it to the plaintiff.
    This makes out a sufficient cause of action in the first place.
    To show that the note was paid, the defendant has proved that in the year 1854, himself, Chambers and Matson were engaged in buying and selling sheep; that they purchased one or more droves; a note for $2,038 was given by Gheen and Chambers to the Bank of Chester county, on which Matson paid some $500, and the residue to reduce the claim to $1,500, was paid by Gheen, and this note given.
    It is averred by the defendant that Matson lifted the note from the bank by paying the money he owed for the sheep which he received from Gheen and Chambers.
    The evidence shows that at the estimated value of the drove of sheep, and computing them at the price the witness offered to pay for them, they would amount to over the face of the original note.
    There is also evidence that after the time this note was paid in the bank and handed over to Matson, a settlement took place between the parties, and that Matson fell in debt to Gheen in the sum of $209, for which he gave his note dating February 15,1855; a letter was written some months after by Matson to Gheen begging time to make paymont of that note.
    [This settlement, with the succeeding transactions, and the lapse of time, it is contended, bars the claim, or rather raises a strong presumption that nothing was due by Gheen to Matson on the note at the time he sold it to Heyburn. This is certainly the fair legal presumption, and it rests on the plaintiff to show you that the note in suit was not embraced in that settlement, but that the sheep were paid for in some other way.
    This he has undertaken to do bj- showing that on the 25th October, 1854, Matson paid Gheen $500 ; by check to Chambers on the 4th of September, $250; to the same on the 15 th of September,-$750 ; on the 16th of September, $680 ; and on the 20th of January following, $26 ; and gave his note on the settlement for $209, making in all $2,365, which was the full value of the flock at any price which has been fixed by the witnesses.
    The right of the plaintiff to recover depends on whether this note was or was not embraced in that settlement. If it was or was paid in any other way the plaintiff cannot recover. If never paid he can, and whether it was or was not settled is entirely a question for the jury.]
    Where the proof shows that parties met and settled, it is fair to presume that they embraced all things outstanding; if shown they settled nothing but their book accounts, that would not discharge a promissory note which the one held against the other. If they included with their accounts all promissory notes, it would not embrace a bond never brought forward. In short nothing is settled but that on which the parties acted ; unpresented claims may be recovered afterwards. As we before stated [when parties admit that they have settled, or it is proved that they met and settled their mutual dealing, the legal presumption is that bonds, notes and accounts are included ; but this may be repelled by proving that they were not, or by showing what was before them, from which it may be inferred that they were not. How is this shown in the present case ?
    The plaintiff contends that it is proved when he establishes the amount paid to Chambers and Gheen, on the sheep transactions, and that it, with his note then given, covers the whole value of the flock. But it is asked, why was not this note brought forward? To this it is answered that the holder, Mat3on, entirely forgot that he had lifted it from the bank, and the transaction'was not recalled to his recollection until it was discovered some years afterwards. You must judge whether that is probable, and how far it- is satisfactory.] The defendant has proved Matson’s declarations of surprise, that in the settlement he fell so far short of his expectations ; found himself many hundred dollars short, 500 or 600 at the least, though the witness cannot exactly fix the sum in his memory. The same fact of falling greatly short in his cash, is proved to have been mentioned to others of the defendant’s witnesses. [No other dealings are shown to have existed between Matson, Gheen and Chambers, except in relation the sheep and from the receipts or vouchers produced, it would look as if they were fully paid for, without bringing in the $1;500 note. Had they other dealings which absorbed this note, or some of the other payments?]
    It seems strange that a man should overlook so material an item in making a settlement, and should not be able to remember it for several years, when the note was discovered, although the party knew that he was on the verge of bankruptcy and was always complaining that he could not account for his situation or his losses ; yet [if there were no other dealings and the payments were made as shown by the vouchers, it would look very much as if the note was not brought into the settlement and remains unpaid, and it was certainly never lifted.] It is your duty to consider and weigh all of the facts carefully, and give all due weight to the letter of Matson craving for further time on his note and promising to make payment.
    Also the great length of time which Matson held the note before it was sued, and all' that he said when offering it for sale. It seems pretty clear that Matson paid the amount of the note to the bank and lifted' it.
    He drew $1,775 from the Wilmiugton Bank, on the 20th September, in notes, and paid this note on the same day in similar money according to the recollection of the bank officers; of the correctness of this you must judge.
    It is contended that there can be no recovery in this case because it was the voluntary payment of the debt of another. This is sound as a general rule, but it would scarcely apply to receiving the transfer by delivery of negotiable paper, on paying the amount to a former holder, especially paper not then overdue.
    If one man could go to the records and pay off the judgment or mortgage of another person, or even a book debt, and receive no transfer of the obligation, he could not collect it. If transferred or assigned, he could, and mercantile paper is transferred by delivery. The jury might fairly infer from what had transpired at the bank in regard to the former note that it was expected Matson would make this payment and bring the note into settlement on account of the debt he owed to Gheen and Chambers, and if he did not bring it in, but paid them otherwise, we can see nothing to prevent him from sustaining an action on the instrument. [The case must after all turn on the question whether this was or was not brought into that settlement, or paid by the defendant otherwise. It never paid or settled the plaintiff is entitled to recover, if paid or in any way settled, your verdict should be for the defendant.]
    
      December 10, 1862, verdict tor plaintiff for $2,288.25. Gheen then took a' writ of error assigning as errors the portions of the charge embraced in brackets and an additional error that the Court should have instructed the jury to deduct the note of $209 of Matson’s which had not been paid.
    P. F. Smith, T. Haines and Washington Townsend, Esqs. for plaintiff in error argued,
    that Gheen and Matson had settled; and it was presumed that the settlement embraced everything. A settlement should not be set aside on doubtful evidence. Baker vs. Biddle, 1 Bald 508; Bainbridge vs. Wilcox, 1 Bald 540. Testimony to overcome a settlement should be clear and satisfactory and not encumbered with reasonable doubts; Emmons vs. Stahlnecker, 1 Jones, 369; Chappelaine vs. Dechenoux, 4 Cranch, 309; 1 Story Eq. Jur. Sect. 526, 527.
    As a whole the charge was calculated to mislead the jury; Reeves vs. R. R. Co., 6 Casey, 454. It was error to permit the jury to infer that the note was omitted from the settlement from facts that did not justify such an inference; Kelly vs. Kauffman, 6 Harris 354. Material mis-direction without prayer for instruction is error; Garrett vs. Gonter, 6 Wright 146.
    The charge left it entirely to the jury to say whether the note was omitted from the settlement, when the Court should have ' told them what evidence was necessary to overcome the settlement, leaving it to them to decide whether it was included or not upon any evidence at all ; Penna. R. R. Co. vs. Zebe,9 Casey 327; Gilchrist vs. Rogers, 6 W. & S. 488; Switland vs. Holgate, 8 Watts 385; Snyder vs. Wilt, 3 Harris 59; Haines vs. Stouffer, 10 Barr 363; Hersheaur vs. Hocker, 9 Watts 455; Wilson vs. Davis, 5 W. & S. 521.
    The note for $209 should be deducted under the authority of Glenn vs. Davis, 2 Grant 15?, not because it is a set-off, but because admitting everything claimed by plaintiff that much less was due to Matson at the time it was given.
    
      Wayne McVeagh and J. J. Lewis, Esqrs., contra.
    
    Gheen did not ask for specific instructions and cannot complain that they were not given; Wertz vs. May, 9 Harris 280.
    This Court will not reverse because the remarks of the judge below, which were not binding instructions, are not the same as they might make; Phelin vs. Kenderdine, 8 Harris 364; Porter vs. Seiler, 11 Harris 428.
   The Supreme Court affirmed the decision of the Court below on February 1st, 1864, in the following opinion per

Agnew, J.:

There are nine specifications of error in this case, eight of which are drawn so as to bring the charge up before the Court as a whole, “not (as is stated in the printed argument) for the purpose multiplying the assignments of error, for in fact all but the last aré reducible to one principle.”

The-plaintiff in error having so treated the charge we may dismiss all the errors assigned to it by saying that as a whole we see no error in it. The real complaint of this plaintiff in error is that the Court below did not say what they were not asked to say ; that is, what is the legal character of the evidence necessary to overturn the presumption arising from a settlement. It cannot be said that the Court did not fairly lay down the law of settlement to the jury and its effect upon the claim of the plaintiff below, throwing upon him the burden of proof to show that hi» claim was taken out of it, Nor can it be said with truth that the evidence was weak, which tended to show that the $1,500 note was not taken in. The evidence certainly did show thoroughly that Matson took up this note with his own money, and then was entitled to hold it against Gheen, the drawer. There is no evidence showing that the possession of the note was out of Matson before he transferred it to the plaintiff below. The only transaction of business between Matson and Gheen was the sale of one thousand sheep belonging to Gheen and Chambers upon commission. The proof shows that these sheep were worth from $2,200' to $2,300 and also that the settlement between them related to this flock of sheep. The settlement took place in January or February. 1855, probably in the latter month, taking the date of the $209 note as a guide. But the plaintiff produced receipts and check dated from the 4th January, 1854, until the 20th January, 1855, showing actual payments to Chambers and Gheen amounting to $2,156. These sums with the note of $209 given at the settlement make $2,365. The proof does not show the exact amount of the sales of the 1000 sheep, but it does show that Chambers and Gheen before giving them to Matson to sell for them asked $2.32 per head, making $2,320. Now clearly this was no weak and inconclusive proof, but it tended thoroughly to show that the only subject of settlement was the sale of the sheep. If these checks and receipts did not belong to the sheep transaction, what under the evidence did they relate to ? They came along from September to January, just the time when Matson would be paying Gheen and Chambers and ended just before the settlement. They amount to the sum for which the sheep must have been sold as nearly as we can judge, and of which the jury had thorough proof in the price offered to Gheen and Chambers and the price asked by them. The sums $250, $750, $630, $26, $500, correspond with the probabilities of payments on demand. Now how were the jury to get around or go over those payments. If the $1,500 note had been embraced it would have brought Gheen about $1,300 in debt.

Upon the whole case then this evidence was not so weak and inconclusive as to have made it the duty of the Court without any prayer for specific instructions to say to the jury it was such evidence as could not be relied upon. It is true there were facts and evidence which to some extent tended to break the force of the proof, but not so thoroughly as the plaintiff in error seems to believe, while its countervailing effect was for the jury. The character of the evidence therefore justified the learned judge of the Court below in leaving the case to the jury undertheinstruotions he gave to them, and if the defendant below (the plaintiff in error) desired a more specific instruction upon the quantum of evidence he ought to have asked it. Not having done so, we cannot .say there is any error in them.

The ninth error which relates to the $209 note is subject to the same remark.

The note was simply given in evidence as a matter connected with the settlement. If any special direction was needed it ought to have been asked for, or the omission remedied by a motion for a new trial. We can only say there was no misdirection used, therefore we cannot reverse.

Judgment of the Court below is to be affirmed.  