Jones v. Hughes , 66 Miss. 413 ( 1889 )

Campbell, J.,

delivered the opinion of the court.

The action of the circuit court upon the instructions was correct. This casé is plainly distinguishable from Foster v. Metts, 55 Miss. 77, and Gunning v. Royal, 59 Miss. 45, in which the promise was by the party alleged to be liable, and which was not enforceable because of want of consideration. Here a new party — a third person — induced Hughes to cancel the deed of trust he held, by obligating himself to pay what Hughes claimed to be due him from Winter, unless Hughes’ receipt for the sum of five hundred dollars should be produced. Hughes had the right to refuse to cancel the encumbrance without payment, or to prescribe other terms on which he would do it. He says his terms, agreed to by Jones, were production of his receipt for the five hundred dollars, or payment of that sum by Jones. Testimony by Winter that he had paid the five hundred dollars, and had held a receipt by Hughes for it was not what Hughes bargained for, as he testified, and the jury believed and found.

The court did not err in excluding the book of Winter. All the evidence that the disputed five hundred dollars had been paid was irrelevant. The issue was not, whether it had been paid, but as to proof of payment by the production of Hughes’ receipt as the evidence of it. He stipulated for that, and was entitled to demand it, under the circumstances of this case.

Affirmed.