Tms was an action of assumpsit brought up by direct ap. peal from the judgment of a justice of the peace, to the Superior Court of Wilkes, where it was tried before Dice, Judge, at the last Spring Term. The suit was brought for two parcels of pork and some articles delivered by the plaintiff to the defendants.
Decided 1857-08-05
Pearson, J.
¶1
When this case was before-us in August Term, 1855, 2 Jones’ Rep. 454, we decided that the plaintiff could not recover, because, after performing a part, he had refused to perform, the residue of the agreement. There- was no evidence to vary the case-in this- particular, and it was error to leave it to the jury to decide-whether or not the defendants had released the plaintiff from- his obligation to deliver the balance of the pork. Delivering up the notes, giving an order for the judgment, and entering the balance in the books as a credit to plaintiff, was in exact pursuance of the original contract, and could be no evidence of its release, or the substitution of a new one.
¶2
“ The offer” of the plaintiff’s counsel to remit the recovery to seven dollars, the amount due for the corn, beef, and raw hide, although made at the suggestion of the court, cannot
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cure tbe error. The plaintiff ought to have remitted the amount absolutely, so as not to take a chance in this court for the whole.
¶3
Per OueiaM, Judgment reversed, and
a venire de novo.
