
    *Young for &c. v. Johnston.
    July Term, 1853,
    Lewisburg.
    Bonds — Discharge-—Case at Bar. — p was indebted to J, and J wanting money in the absence oí P borrowed of Y one hundred and fifty dollars, for which he gave his note with the understanding that on the return of P he would pay it; and accordingly upon the return of P he paid the amount to Y and took in the note. Some two years after-wards P and J had a settlement of their accounts, whenP was found to be the debtor of J, and gave his note for the balance. Some years subsequent to this settlement P found the note among his papers, and believing it had been omitted in the settlement between himself and J, assigned it for value, and an action was brought upon it in the name of Y for the benefit of P, the then holder of the note. Upon the evidence the court was of opinion that the note was embraced in the settlement. But if not, by the payment P became a creditor of J for so much money paid for his use; and the note was discharged and extinguished by such payment, and was not revived by the omission of it in the settlement.
    This is an action of debt brought by Young for Porterfield against Johnston, on an obligation in these words:
    “Due D. S. Young, on demand, one hundred and fifty dollars, for value received. Witness my hand and seal this 9th day of February 1833.
    Zach. Johnston. [Seal.]”
    Issue was joined on the plea of payment; and a verdict was thereon found for the defendant. The only evidence on the part of the plaintiff was the obligation. The defendant introduced a single witness B. F. Frye; who proved that on the 19th of December 1831, he purchased of the defendant one hundred and fifty barrels of flour, to be delivered in February following, and to be paid for at the end of twelve months, according to a covenant between the "^parties, which was exhibited. That in February 1833 (about the time the price of the flour became due), witness being absent from home, and defendant being in want of money, the defendant called upon the plaintiff and borrowed one hundred and fifty dollars, with the understanding that upon his return witness was to take up the obligation which defendant executed to plaintiff for said borrowed money; and which is the same sued upon. That upon his return witness did take up said bond, and retained it in his possession. That some time afterwards, witness and defendant had a partial settlement of the flour transaction; which settlement, with sundry receipts for items embraced therein, were produced and recognized by witness. That in that settlement is an item of cash one hundred and fift3r dollars, which witness could not identify as being or not being the obligation for one hundred and fifty dollars; and he could not say whether the obligation had or had not been settled between himself and .defendant. That he had mislaid it for seven or eight years, and accidentally found it enclosed in a letter. That in 1841 he assigned it, for value received, to Crawford. That witness was a merchant when the obligation was executed, and when the partial settlement was made, and it was his habit, when he received or gave a bond in payment, so to enter it, and not as cash. That upon a final settlement of the flour transaction, he fell in debt to the defendant, and executed his bond for the balance due, and that he held the obligation for one hundred and fift}’ dollars for some years after the final settlement of the flour transaction and until he assigned it to Crawford. This was all the evidence in the case. The plaintiff moved the court to set aside the verdict and grant him a new trial: first, because the verdict was contrary to the evidence; and, secondly, because the witness, after the rendition of the verdict, recollected facts material *to the issue, and had made affidavit thereof; which affidavit was introduced in support of the motion. The substance of the affidavit was, that since his examination as a witness in the case, affiant recollected that having sold his property in 1835 or 1836 to Stuart, said Stuart, to meet his payment, purchased a number of affiant’s bonds, including ' one which had been executed to ;he defendant, and when said Stuart produced said bond and wanted credit for it, affiant recollected that he held the said obligation for one hundred and fifty dollars, and was disposed to offset it against the said bond; but upon reflection, knowing said defendant to be good' for the amount of said obligation, he concluded to accept his own bond to the defendant in part of Stuart’s payment, and look to defendant for the one hundred and fifty dollars; and that his memory being refreshed by this circumstance, he did not believe that said obligation of one hundred and fifty dollars ever was settled between himself and defendant. The court refused to set aside the verdict, and grant a new trial, believing that the verdict was in accordance with the evidence, and that justice had been done: To which opinion of the court the plaintiff excepted. All the evidence which was before the jury, and the affidavit aforesaid, are set out in the bill of exceptions. Upon the application of the plaintiff a supersedeas was awarded.
    . J. B. Baldwin and R. P. Kinney, for the appellant.
    A. H. H. Stuart, for the appellee.
    
      
      See generally, monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   MONCURE, J.,

after stating the case, proceeded:

The question to be decided by this court is, Whether the Circuit court erred in refusing a new trial?

I think the evidence which was before the jury fully sustains their verdict; and shows, not only that the obligation was paid by Erye to the plaintiff, at the request *and on account of the defendant, but that it was paid out of the defendant’s money in Erye’s hands; and the amount so paid was afterwards included in the settlement between Erye and the defendant. In Eebruary 1833 the defendant was in want of one hundred and fifty dollars; and having more than that amount in Erye’s hands, would have gotten it from him; but Erye was from home, and he borrowed it from the plaintiff, and gave him the obligation therefor, with the understanding that Erye would take it up on his return home; which Erye accordingly did. These facts are not contradicted or countervailed by any evidence in the case or anything in the affidavit, and fully establish the payment of the obligation to the plaintiff. If they had stood alone they would have sustained the verdict. In connection with the other evidence in the case they show that the payment thus made by Erye, at defendant’s request and for his use, was afterwards included in a settlement between them. It was obviously intended to have been paid out of the price of the flour, and to have been included in the settlement of that transaction. It is not probable that so large an item would have been forgotten; especially as we see that very small items, one of them as small as five or six dollars, were included in that settlement. Nor is it probable that, if not forgotten, Er3re would have given his bond for the balance due on account of the flour, and afterwards paid it without having any credit for the payment made in discharge of the obligation for one hundred and fifty dollars. In addition to all this, there is a credit in the settlement corresponding precisely with this payment in time and amount. One of the items of the settlement being, “Cash 1st March 1833, one hundred and fifty dollars.” The 1st of March 1833 was two or three weeks after the date of the obligation and about the time no doubt of Erye’s return. There is nothing in the form of the entry tending to *show that it does not refer to the payment of the obligation. There was no occasion for expressly naming the bond in the entry, as it was no doubt well understood between the parties at the time of the settlement. The amount and time of payment were alone material. The settlement exhibited was not a formal account between the parties, but a brief summary of items of payment made by Erye to and for the defendant, the apparent object of the summary being to ascertain the total amount of all the payments. Nor is there anything in the fact that interest is charged on the item of one hundred and fifty dollars in the settlement from the 1st of March 1833, instead of the 9th of Eebruary 1833, the date of the obligation, which tends to show that the item does not refer to the payment of the obligation. The payment having been made a few days after the date of the obligation, no interest was probably charged upon it by the plaintiff. The form of the obligation tends to show that it wás intended as a mere due bill to be taken up in a few days. Erye having made the payment for the defendant, and out of his funds, could only charge interest on the amount paid, and from the time of payment. That the obligation was not delivered by Erye to the defendant at the time of their settlement, is not a very material circumstance. The settlement took place a year or two after the payment of the obligation. The obligation had been mislaid by Frye, and may have been forgotten by both parties; especially if it was merely given as a due bill or memorandum to be taken up in a few days.

Thus stands the case on the evidence as it was before the jury. Would it have been materially altered by the facts set out in the affidavit? I do not think that it would. Those facts merely tend to show that the credit or claim of Frye for money paid in discharge of the defendant’s obligation, was omitted, by mistake or design, in their settlement. This is so inconsistent *with the circumstances of the case and the written evidence, that I think the affiant must have been mistaken in his recollection of an occurrence that had transpired about fourteen years before he made the affidavit. But even if it be conceded that there was such an omission in the settlement, it would merely make EVye a creditor of the defendant for the money paid for his use in discharge of the obligation, with interest from the time of payment; and would not revive the obligation which was discharged and extinguished by such payment.

I think therefore the court was right in refusing a new trial, and that the judgment should be affirmed.

The other judges concurred in the opinion of Moncure, J.

Judgment affirmed.  