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defendant would do his job and receive his pay," at the time specified, "and would then pay the plaintiff for his goods."
According to the view we have taken, the instruction given the jury was erroneous. It being the province of the court to declare the legal meaning of a contract, the jury should have been told that the language, or terms of the contract, as stated by the defendant himself, meant, in contemplation of law, that the purchase money for the horse should be due and payable at Christmas, in 1858.
Let the judgment be reversed, and the cause remanded for further proceedings.
MAYSON, AD. vs. EDINGTON, AD.
On the trial of a cause de novo in the Circuit Court, the parties may introduce other evidence than that contained in the bill of exceptions (Sullivan, ad. vs. Deadman, ante.)
Where there is a conflict of testimony, the court will not disturb the verdict of the jury, or the finding of the court below.
Appeal from Desha Circuit Court.
Hon. JOHN C. MURRAY, Circuit Judge.
GARLAND & RANDOLPH, for appellant.
Mr. Justice CoмMPTON delivered the opinion of the Court. This was a proceeding in the Probate Court for allowance and classification of a claim-being a physician's bill for professional services-against the estate of Gerge C. Britt, deceased. On appeal to the Circuit Court a trial de novo was had, and judgment rendered against the estate of Britt for $360 50, from which the administrator has appealed to this
For a reversal of the judgment two objections are relied on by the appellant: 1st. That on the trial de novo, the Circuit Court permitted evidence other than that contained in the record of the proceedings in the Probate Court, to be introduced; and 2d. That the finding of the circuit judge, who tried the cause, sitting as a jury, was not warranted by the evidence. That there is nothing in the first objection, see Sullivan, adm'r vs. Deadman, decided at the present term. Nor is the second objection well taken. True, there is some conflict in the evidence as to whether the professional services were rendered gratis, and as to whether the charges were exorbitant; but then there is nothing better settled by the decisions of this court than that the verdict of the jury, or the finding of the court, in such cases, will not be disturbed here.
The judgment is affirmed.
Ferguson et al. vs. McCain.
FERGUSON ET AL. VS. MCCAIN.
A plea that the consideration of the note sued on was an improvement on, and right to land, represented as swamp land belonging to the State, the owner of which improvement would be entitled to a pre-emption; and that the land was not swamp land, is not good as a plea of failure of consideration.
Appeal from Pulaski Circuit Court.
Hon. JOHN J. CLENDENIN Circuit Judge.
BERTRAND, for the appellants.
WILLIAMS & MARTIN, for appellee.
Mr. Justice Fairchild delivered the opinion of the Court. McCain brought an action upon two bonds against Ferguson and another person. As a defense to one of the bonds, Ferguson pleaded that it was given in consideration of the settlement and improvement of McCain, upon the north-east quarter of section twenty-three, in township three, north of range fourteen west, and for his right to the land; that McCain represented to Ferguson that the land was swamp land belonging to the State, by which McCain, or any owner of his settlement or improvement, would be entitled to a pre-emption of the land, upon making the proper proof under the laws of the State, whereby Ferguson was induced to purchase the settlement and improvement; that the land was not swamp land, but railroad land, being included in the grant of lands for constructing the Cairo and Fulton railroad.
Although the plea avers that the consideration for the bond
was McCain's right to the land, as well as his settlement and improvement thereon, it also shows that McCain had no title to the land, that his only interest was the privilege of becoming its owner by purchase from the State. All that was sold to Ferguson was McCain's improvement. The plea does not show but that Ferguson obtained, and keeps possession of all that he bought, although he may be disappointed in his expectation of acquiring title to the land by purchase from the State. If McCain had known that the land was railroad land, and had falsely represented it to be swamp land, and had thereby induced Ferguson to buy it, the plea would have presented another case. No fraudulent representation of McCain is alleged; for all we know by the plea, he believed the land on which he had settled was swamp land. Whether it was so or not, was a matter about which Ferguson might have had as correct information as McCain. The means of knowledge were accessible to both, or to one as much as the other.
The plea is not good as a plea of failure of the consideration of the bond in the first count of the declaration, and the circuit court rightly sustained the demurrer of McCain, quashed the plea and rendered judgment against Ferguson and his co-defendant for the amount of the bond.
23 212 67 460
Jones vs. Jones.
JONES VS. JONES
A deed, purporting on its face to be a conveyance of property, could not be made a mortgage in this case, because the evidence did not establish such a conclusion. Where notes are barred by the statute of limitations, the payment of money as secu
rity for the debtor, cannot revive them.
A note which has not been delivered, and which is in the hands of the maker, cannot be presumed to represent an existing debt.
In a proceeding to settle a partnership concern, it is not proper to take into conside ration an account between the parties for clearing and building upon their joint lands, and rents received therefor-the account in such case should be settled in a proceeding for partition.
The settlement of an unliquidated partnership transaction should not involve with it mere personal demands: but if, on ascertaining a balance, it appears that the other party had an existing demand for moneys paid, to an equal or greater amount, it is not equitable to render a decree for such balance.
Appeal from Sevier Circuit Court in Chancery.
Hon. LEN B. GREEN, Circuit Judge.
GALLAGHER and KNIGHT, for the appellant.
GARLAND & RANDOLPH, contra.
Mr. Justice FAIRCHILD delivered the opinion of the court.
With the most of the matters with which this case is loaded, we need have no concern. The deed brought into the record, as exhibit A, No. 1, of the bill, was to protect the plaintiff, Orlando S. Jones, against loss from standing as security for the defendant, John T. Jones, and may be dismissed with the remark, that the bill only claims that the plaintiff paid fourteen