49 Ala. 173 | Ala. | 1873
— The appellee’s intestate was tbe surety of one Reid on a promissory note made by them, payable to tbe appellant, and due in January, 1862. In the summer or fall of 1865, Reid proposed to the appellant to pay tbe note with cotton, at seventy cents a pound, tbe price then being about thirty-five or forty cents. The cotton then in his possession was to be delivered at his gin-house, when ginned and packed, of which the appellant was to have notice. To this proposition the latter agreed, and afterwards he received some cotton, which he sold and appropriated to the payment of the note. But on account of deficiency in the quality and quantity, a balance remained which has not been paid. In May, 1866, the appellant, in reply to an inquiry about the payment of the note, made by the surety through his son, stated that he had agreed with Reid to receive payment in cotton, and he need give himself no uneasiness about it. The suit being on tbe note, against the administrator of the surety alone, the court charged the jury, by proper request of the defendant, to find for him.
It is a matter of no little difficulty, in a case of this sort, to discriminate between the province of the jury and that of the
The judgment is reversed, and the cause remanded.