Brenner v. Herr ( 1848 )

Burnside, J.

This was an action of debt on a bond conditioned to pay $737 on the 1st of April, 1846. We think the error complained of in the charge is maintained. The court on the evidence should have submitted the case to the determination of the jury, and ought not to have instructed them that whatever amount was unpaid on the bond, was recoverable in this action. Whether the balance clue was recoverable would depend on the truth of material facts in evidence.

The bond now in court was supposed to be lost after the death of Christian Herr the father. Brenner insists and gave some evidence that he gave a new bond to the plaintiff below to supply its place. It was in evidence that the parties met on the 4th of April, 1846, when the new bond was delivered up and $650 was accepted as payment, when Herr promised that if the old bond was ever found he would deliver it up as cancelled. The defendant in error denies this. The material question was a fact for the jury — the truth of Brenner’s allegation — for if .the new bond was delivered and accepted by Herr, and re-delivered up to Brenner on the payment of the $650, as young Brenner swears, the plaintiff ought not to recover, 16 Johns. 88; 5 Johns. 392. There is some discrepancy about dates, in the evidence, but that is for the jury. “A bond is not perfected until delivered:” 2 Barr, 448.- Whether there was a full accord and satisfaction will depend on the jury finding the truth of Brenner’s allegation. But if no new bond was delivered, then the defence fails, and the court’s instructions were right.

The case is one for the jury on the principles indicated.

Judgment reversed, and a venire de novo awarded.