
    Ables v. Austin and another.
    Where a note is given on settlement, it is not sufficient to prove payments made before the date of the note, but it must also be proved that they were not taken into the account.
    Appeal from Cherokee. This suit was brought by tiie appellees against the appellant on a promissory note. The defendant pleaded that the'note was given in the settlement of an account of long standing between the parties, and that at the time the plaintiffs were really indebted to him in various sums greatly exceeding the amount of the note, and which, he said, were not recollected at tiie time of the settlement. There was no offer to prove hut one of the several matters pleaded. The note, was given on the 30th March, 1845. At the trial, which was at the Pall Term, 1852, the defendant introduced a witness, who testified that in tiie fall of 1844 he delivered the plaintiffs twelve hales of cotton, on which he received an advance of $200; that at the request of the defendant, who stated that he was indebted to tiie plaintiffs, he instructed the latter to apply the residue of the proceeds of the cotton, when received, to the defendí) nt’s credit on his indebtedness to them, and that about a year after-wards he received from the plaintiffs an account of the sale of the cotton, showing a balance against them of above $222, “which witness had never drawn, and had never had any settlement with said Austin and Clapp.”
    There was a verdict and judgment for the note sued on. The defendant appealed.
    
      T. J. Jennings, for appellant.
   WheeleR, J.

It is remarkable, if true, that the witness should have permitted eight years to elapse after the shipment of his cotton, and seven after receiving an account of the sale, showing a balance in his favor of over two hundred dollars, without having- drawn the balance due him, or had a settlement with tho plaintiffs. This certainly was not according to the usual mode of transacting business. It is not probable that when the note was given, some months after delivering the cotton, the fact that the defendant’s account was to be credited on account of the cotton would have been overlooked or forgotten by the parties to the agreement. Tho strong'probability is, that the proceeds of the cotton were credited upon the defendant’s account before it was closed by this note, and that the account of the sale of the cotton was furnished the witness to enable him to settle with the defendant. It may be true that he had not drawn the balance of the proceeds from the plaintiffs, because he knew they had settled the amount with the defendant as he had directed, and this may account for his supineness in calling the plaintiff's to a settlement. There is no positive statement of the witness inconsistent with this supposition, and from the character of the transaction as detailed by tho witness and disclosed by the record, the jury were, we think, authorized to come to that conclusion. However this may have been, if the account of the sale of the cotton had not been received, and the resnlt consequently was not known at the time of the settlement, the parties were certainly aware of this, and they must have rescinded their agreement to credit the proceeds of the cotton on the account between them, leaving it to be settled between the plaintiff and the witness. This, if not expressly agreed upon, was impliedly effected by the settlement under the circumstances. There is no evidence of any fraud or mistake in the settlement, and that it cannot now be set aside by one party without the consent of the other is quite too clear for controversy.

Judgment affirmed.  