
    Jacob Miller v. John R. Woods and James B. Dunlap.
    1. Where the payee of a promissory note is induced, by the fraud of the maker, to accept a partialpayment of the amount due, and anew note of the maker for the remainder, in full satisfaction of the old note, upon discovery of the fraud the payee may maintain his action on the old note, without first offering to return the money so paid, or the new note, provided he has the new note in court ready to be delivered up or canceled at the trial of the cause.
    
      Ü. In such case the partial payment is to be regarded as a fact by itself, con-. stituting no part of the consideration of the agreement, and it is not necessary, therefore, that the money so paid should be produced at the trial, the same having been, in contemplation of the law, already applied in part payment of the original note.
    Error to the- court of common pleas of Trumbull county. Reserved in the district court.
    Miller brought his action in the common pleas against Woods and Dunlap upon a promissory note for five hundred dollars, made by the defendants to the plaintiff on the 12th of April, 1863, averring in his petition that the note had been lost or destroyed, and offering to indemnify them against it, in case it should ever be found.
    The defence set up was, that after the note had been lost, Woods, who was the principal debtor (Dunlap being a mere surety), paid to the plaintiff three hundred dollars upon the note, and executed to the plaintiff a new note for the balance remaining due, payable at a future time ; and that the money so paid and the new note were executed and paid by Woods, and received by the plaintiff, in full payment and satisfaction of the lost note.
    In reply to this defence the plaintiff alleged, that the three hundred dollars, and the new note of Woods, were received by the plaintiff’s attorney, without the plaintiff’s knowledge or consent; and that the attorney was induced so to receive the same by the fraud of Woods, who falsely represented to the attorney that the plaintiff had agreed and consented so to receive them. But the plaintiff does not, either by his petition or his reply, allege that he had ever tendered or offered to return the three hundred dollars, or the new note.
    On the trial the plaintiff produced the new note, and offered to cancel it, and also filed with the clerk the three hundred dollars, so paid to his attorney by Woods, and offered to apply and credit the same upon any judgment he-might recover in the action.
    After the evidence had been closed, the court, on motion of defendants, instructed the jury, that the plaintiff could not recover in the action, unless he had, before bringing his suit, offered to return the new note, and the three hundred dollars so paid to his attorney. To this charge the plaintiff excepted.
    Under these instructions the jury found a verdict for the defendants, and judgment was rendered thereon. To reverse-this judgment a petition in error was filed in the district court, and reserved for decision here.
    
      jF. JE. Hutchins for plaintiff in error.
    No brief for plaintiff in error has come to the hands of the reporter.
    
      Taylor & Janes for defendants in error:
    The plaintiff could not rescind without offering to return the money paid, and to cancel the new note. Offering to cancel the note at the trial, and, conditionally, to return the money after judgment, are not sufficient. Kimball v. Cunningham, 4 Mass. 502; Conner v. Henderson, 15 Mass. 319; Chitty on Contr. 681; 2 Kent Com. 480, note a; Burgett’s lessee v. Burgett, 1 Ohio, 482; Hoggins v. Bancroft, 1 Dana, 30; Jones v. Evans, 6 Dana, 96; Perly v. Balch, 23 Pick. 283; Bowley v. Brydon, 12 Pick. 307; Burton v. Studart, 3 Wend. 236; The Manhattan Co. v. Bently, 13 Barb. 64; Cain v. Guthrie, 8 Blackf. 409; Shaffer v. Slade, 7 Blackf. 178, 184; Ib. 501.
   Welch, C. J.

If the court was right in its instruction to the jury there was no material issue for them to try. The instruction was to the effect, that if all that the plaintiff alleges were true, he has no good cause of action, and that the jury should, therefore, return a verdict for the defendants.

Was the court right in its instruction ? Was it necessary, in order to his right to recover, that the plaintiff should return or offer to return the money and the new note, before the commencement of his action ? The authorities on the subject are conflicting. We are inclined to follow the ruling in the case of Nichols et al, v. Michael et al., 23 N. Y. 264, where it was held that in a case like the present it is sufficient that the new security or note be brought into court, ready to be given up or canceled on the trial. We think this case stands supported by reason and the better class of authorities.

As to the sum of three hundred dollars paid by Woods, we cannot see that the plaintiff was bound to do anything, even upon the trial. The money was paid upon the old note. Its payment was an act of duty and obligation on the part of Woods, and could form no part of the accord, or of the consideration for the agreement made by the plaintiff’s attorney. It was an independent fact, separate and distinct from the execution of the new note, which formed the only real consideration of the alleged agreement.

We think, therefore, that the court erred in its instructions, in charging that the plaintiff was bound to tender or repay the money at all, and in holding that the plaintiff could not maintain his action without first offering to restore the new note.

Judgment reversed, and cause remanded for further proceedings.

White, Day, McIlvaine and West, JJ., concurred.  