¶1The main question in this case was, whether the paper of May & Cloyes was received by the plaintiffs below in payment of their claim against the defendants ? That the paper must have been so received by the plaintiffs, to make it operate as such payment, was admitted by the defendants’ request to charge, and it does not appear to have been a disputed question. But the real question in connection with this point was, by what kind of evidence it was competent for the defendants to show that the paper in question was so received? The defendants’ counsel requested the court to charge, “that it was not absolutely necessary to show an express agreement on the part of the plaintiffs' to receive the note of May & Cloyes in payment of their claims against the defendants; but that if they find, from all the circumstances of the case, and the subsequent acts of the plaintiffs in ¿regard to said note, and in taking new notes of the makers, and extending the time of payment, they had acted and treated said notes as their own, and as received in payment of their claim, then the jury are authorized to take such facts into consideration, and find that the note was received by the plaintiffs in payment — if the evidence satisfies them that such was the fact.”
¶2This request raised the question, what kind of evidence the jury were authorized to consider as bearing upon the question of the receipt of the note in payment, And this was a very material question, in the aspect in which the case appeared upon the evidence. This charge the court refused to give; but did charge that the receipt of the note by the plaintiffs would not discharge the defendants, “ unless the plaintiffs received the notes in payment;” and this is the whole of the charge in reference to the question of the reception of the notes by the plaintiffs. This charge, though correct, so far as it went, entirely evaded the question of *500the kind of evidence which it was competent for the jury to consider as bearing upon the point in dispute, and left to the jury only a question about which there was no controversy.
¶3But this charge, taken in connection with the request to charge, and the refusal of that request, necessarily, we think, left the jury to infer that it was necessary to show an ex~ press agreement on the part of the plaintiffs to receive the paper in payment, and that they would not be authorized to find that it was so received, from all the circumstances and the subsequent acts of the parties, referred to in the request. And they must also have inferred, that an express agreement must be shown by direct evidence.
¶4We do not understand this to be the law. We are aware of no rule, and can discover no reason, why direct evidence of an express agreement should be required in such a case. If such was the understanding and assent of the parties, it was sufficient. And that such was the understanding of the parties, may, we think, be proved by the subsequent acts and conduct, of the parties, as well as by direct proof. The weight of such evidence, is, of course, a question for the jury. We think the request of the defendants presented substantially the correct view of the law, and the court should so have charged.
¶5The judgment must be reversed, and a new trial granted.