1. Two brothers being by parol contract. debtor and creditorj and the latter being (perhaps) debtor to a sister, the brothers arranged among themselves, the sister not being present, that what the debtor-brother owed to the creditor-brother should be paid to the sister. Whether the money was intended as a gift to the sister was not declared. It does not appear that the creditor and the sister ever had any conversation on the subject, or that she ever canceled, released or relinquished any claim upon him or entered anything to his credit. The debtor informed her that he was to make payment to her, promised to do so, and asked for indulgence, which she granted. She died. After her death the creditor brought suit against the debtor on the original contract. On the trial, the plaintiff testified that in directing payment to be made to the sister, he intended only a gift to her; that he did not know that he owed her anything; and that after her death, the defendant reported to him that he had not paid her, whereupon, he instructed him to make payment to him, the plaintiff, and to no one else. The defendant testified that he paid certain physicians’ bills for the treatment of the sister, and that he defrayed some of her *614funeral expenses. He admitted that he owed her on' his own account more than these sums amounted to, but intimated that his advances were not upon that, but upon the claim now in controversy. The jury found for the plaintiff. After a verdict in his favor, the plaintiff’s testimony is to be the guide in deciding whether there was an extinguishment of his right in whole or in part, either by substitution or by payment. There was no extinguishment by substitution, for only a gift to the sister was intended; and if the sister was his creditor, she did not give, nor did he take, any credit on account of the transaction. The gift was by parol, and executory, and was therefore revocable so long as it remained unexecuted. The subsequent notice to the defendant to pay to the plaintiff was a 1 evocation of his authority to consummate the gift, if the'authority was not already at an end by reason of the sister’s death. There was no extinguishment by payment, for the defendant’s admission that he had not paid is now to be’taken as true, since the jury must have believed it, even if he-is to be understood as testifying differently at the trial. Moreover, payment was not pleaded, but the plea (itself sworn to) set up that the money sued for was due to the estate of the sister, not that it or any part of it had been paid.
2. The debt arose and the action accrued thus: One of the tenants in common in a tract of land bought out his co-tenants, contracting with each severally to pay a specified sum for his undivided share. The purchase was made in the latter part of the year 1872, and his exclusive possession of the premises commenced in the following January. In March, 1877, the plaintiff below, one of the vendors, brought suit for the price at which hie share.was sold. The statute of limitations of four years was pleaded. The plaintiff testified at the trial that nothing was said respecting the time when the money was to be paid, but that his understanding was that half of it was to be paid in the fall of 1873, and the other half in the fall of 1874. He also testified that the defendant afterwards said to him that the purchase was not *615a cash transaction. The defendant gave evidence in his own behalf, but did not deny that he had made this statement, nor suggest that the plaintiff’s understanding was incorrect, nor disclose what his own understanding was, nor testify to any time whatever as the one contemplated for the debt to mature. The court charged the jury in terms satisfactory to both parties. The evidence warranted a finding for the plaintiff, for it seems that neither party understood the debt to be payable immediately ; and if it was not, the jury, in view of all the circumstances, might have concluded that the plaintiff’s understanding was known to and acquiesced in by the defendant, or’ if, otherwise, that the term of credit was left indefinite to await a demand, or the lapse of- a reasonable time. Any of these theories would enable the jury to negative the plea of the statute, without doing violence to the evidence.
