Griffin v. . Petty ( 1888 )

Merrimon, J.

Very certainly, the brother or brothers of the defendants might have paid the note sued upon, or some part of it, with the lumber mentioned that belonged to them, and not to the defendant, if the plaintiff consented to receive the same as a payment. The Court so, in effect, instructed the jury, but it told them that this could not be so “unless-the plaintiff expressly agreed that it should go as a payment on the note.”

We think the strong expression, “expressly agreed,” may have misled the jury — it probably did. If from a preponderance of evidence they were satisfied thát the plaintiff received the lumber, as such payment, they should have so found, and the Court ought to have so instructed them. By “ express agreement” is meant, ordinarily, one made in ex press terms — such as directly declared it; but an agreement such as that insisted upon by the appellants may appear from strong implication; facts and circumstances in evidence may imply it almost as certainly as direct, explicit words. Although there was not evidence of an express agreement to receive the lumber as a payment, there was evidence from which the jury might or might not have found that the parties so agreed.

There is error, because of which the defendants are entitled to a new trial.

Error.