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.
"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 *Page 522 cure the error. The plaintiff ought to have remitted the amount absolutely, so as not to take a chance in this court for the whole.
PER CURIAM, Judgment reversed, and a venire de novo.