
    MARTIN et al. v. McCONNELL & COMPANY.
    August 18, 1896.
    Complaint on note. Before Judge Kimsey. Haber-sham superior court. September term, 1895.
    McConnell & Co. sued E. & B. 0. Martin upon a promissory note for $73.38. Defendants pleaded, that since the suit was brought they had made a contract with plaintiffs, by which the note sued -on was fully paid off. Upon -trial in the superior court, the jury found for the plaintiffs the amount sued for. The testimony for defendants was as follows: About the first of March, 1895, after the suit on this note and several others -of plaintiffs ag-ainst defendants had been 'commenced, defendants proposed to plaintiffs to make to them a payment on the debt they owed plaintiffs, which consisted of the note sued on and several others, and give a mortgage on real estate to secure the same, provided plaintiffs would withdraw the suits and pay the costs, and wait with them until fall. Plaintiffs agreed to the proposition. In accordance with the contract, defendants paid $17 in a bale of cotton and they had deposited a note with plaintiffs as collateral, made by P. J. Shore; and after plaintiffs sued, defendants had told Shore not to pay the note until they and plaintiffs had a settlement. After the contract by plaintiffs to extend time until fall, defendants ordered Shore to pay over to plaintiffs the amount due on the note. After defendants made the payment of $17 and the Shore note of $103, plaintiffs said one of them would -meet defendants at Clarkesville and they would draw tlie mortgage. Defendants did meet J. C. McConnell, one of plaintiffs, at Clarkesville as agreed, but he then refused to carry out the contract because one of the firm objected to the arrangement. So the mortgage was never executed, but defendants had been ready, and, were now ready, to execute the same as agreed, and otherwise fully carry out the contract. If the contract was to he disregarded, they desired the $17 credited on this note -and three other small notes, divided equally between each note.
   Atkinson, J.

Where an agreement for the dismissal of a pending action rests upon the condition that the defendants will execute a mortgage to secure a balance due upon the debt sued for, after payment of a sum certain in pursuance of such agreement, if the defendants offer to comply by the due execution of tbe mortgage, tbe plaintiffs cannot defeat tbe right of tbe defendants to a dismissal of tbe action by a refusal to accept tbe mortgage. Tbe court erred in charging to tbe contrary.

Judgment reversed.

J. C. McConnell testified, that defendants made the payment of $17, and nothing was said as to where it was to be placed. He had not placed it on any of the notes defendants owed him, but he did not care where it was placed; he was willing to have it placed on this note and three other sm'all notes. He did ggree with defendants that if they would pay him the $17 and secure the balance with a mortgage that Mr. Bowden would say was good, he would extend the time till fall on all defendants owed them; but defendants had never made the mortgage. He did not agree to pay the costs in the cases in the justice’s court, and did not say anything about the Shore note to defendants the day they came to see him; but when Shore _got ready to pay his note, he accepted it and gave defendants credit on the $300 note for which it was placed in his hands as collateral security.

Defendants except to the following instructions in the charge of the court:

“If the defendants bad placed a note on another party with plaintiffs as collateral to secure a certain note for $300, made by defendants, payable to plaintiffs, and plaintiffs still held tbe note as collateral at tbe date on which tbis contract to extend time is claimed to have been -made, and the collateral note was paid to plaintiffs by tbe party who owed it, I charge you that that was no consideration for tbe promise to extend time to defendants on tbis note; and I charge you flhat plaintiffs would, have had the right to credit the amount of the proceeds of the collateral note on the $300 note for which it was given or turned over to plaintiffs by the defendants to secure..

“If you should believe there wias a contract between plaintiffs and defendants to extend time to defendants by defendants making or executing a mortgage or deed to plaintiffs to secure the indebtedness of defendants to plaintiffs, and the mortgage or deed has never been executed in accordance with the contract, the contract would not be binding on plaintiffs, notwithstanding defendants may have made some small payments on debts due to plaintiffs.”

G. P. Erwin and J. ■G. Edwards, for plaintiff in error.

Jams & Bowden and G. L. Bass, contra.  