In the District Court, the plaintiffs, before the trial commenced, withdrew the second item in their account from the consideration of the court and jury; and the per- ■ mission of this by the court, is assigned as the first error. There is no rule of law which forbids a plaintiff withdrawing a part, or all, of his demand, save as the right is qualified in the Code, (sec’s 1801 to 1805,) and the action in this case, did not conflict with those provisions.
Other errors assigned, are to certain instructions given at the request of the plaintiffs, the substance and effect of which was, that if the jury were satisfied, that the defendant traded to plaintiffs a promissory note, for the oxen and yoke; and that the note, at the time it was so traded, had been paid off and discharged by the maker, then the plaintiffs would be entitled to recover the value of the cattle and yoke. On the other hand, the defendant requested the court to instruct the jury, that if they found that the note, introduced by the plaintiffs as evidence, was given by defendant to plaintiffs, in payment for the oxen, the plaintiffs could not recover in this action, but must sue upon the contract of transfer of the note; both of which the court gave, with this qualification, unless they believe that the note was paid off at the time the same was traded by defendant to plaintiffs. To the giving of the first of these, and to the qualification of the second, the defendant excepted. There was no error in these instructions. If the defendant passed the note to the plaintiffs in
The defendent further requested the court to instruct the jury, that unless they believed that plaintiffs either returned, or offered to return, the note on B. Post, traded for the oxen, they could not find for the plaintiffs, as they could not retain the note and recover for the oxen sold. This was refused. This would be correct, under ordinary circumstances, but taking into consideration the evidence which appears in the case, tending to show that the note had been paid off when sold to plaintiffs, and the court could not justly give the instruction.
The error assigned in relation to the admission of Post as a witness, cannot be considered, since such does not 'appear as a fact, nor is the release, with which it is connected, nor the note, made a part of the bill of exceptions. And these things, or some of them, are connected with another instruction asked by the defendant. ■ This was, that if the jury believed that plaintiffs, while holding the note delivered by defendant in payment for the oxen, executed a full release to B. Post, the maker of the note, they have thereby prevented defendant from ever recovering on the note, and they cannot recover in this action, inasmuch as they cannot place defendant in statu quo. This release is not made a part of the bill of exceptions, so that we may know what it was, said as a part of the case indicates that it may have been a release as a witness, and not upon the note properly, whilst
The same party also moved in arrest of judgment and for a new trial, for tho matters above referred to; that is, the instructions given and refused; the admission of improper testimony; the admission of B. Post as a witness; and because the verdict was contrary to the law and the evidence. The bill of exceptions gives none of the evidence, and no facts, by which these questions may be tried.
We have deferred until this time, a portion of the considerations urged by defendant’s argument upon the first error assigned, namely, that relating to the withdrawal, by the plaintiffs, of part of their claim, which was for costs incurred in a suit on a note against B. Post. This was that it might be tho better understood, after viewing the other questions. The defendant argues that that portion of the plaintiffs’ account which was withdrawn, was conclusive evidence that a promissory note had been traded to plaintiffs by defendant for said oxen; that plaintiffs had tried to collect said note from the maker, B. Post, and had failed, which would have prevented a recovery by plaintiffs, without a return, or an offer to return, the note; and that whore fraud is claimed in the sale of property, tho vendee cannot sue on the original consideration, without returning, or offering, the property, and thereby placing the party in static quo. This proposition is correct, as a general rule; but if the note had been paid, and had thus become a nullity and valueless, it has no place — the rule does not apply. Then, that the defendant should desire in evidence, the facts which he says were proved by that part of the account, is matter of surprise. It was the plaintiffs who had need to show that they had tried to collect the note so passed to them, and had failed. This, with the fact that they failed because the note had been paid, which the evidence tended to prove, would create a
There appears to be no error in the proceedings, and the judgment of the District Court will be affirmed.