McDonald J.,
By the Court. delivering the opinion.
Both parties except to the decision of the Court below on the motion for a new trial. The Court granted a new trial *215on the ground that the verdict of the jury (which was for the plaintiff,) was contrary to evidence.
The defendant’s counsel having moved to dismiss the appeal entered by the plaintiff in the cause, on the ground, that the issue tried by the jury was a collateral issue, and no appeal could be taken from a verdict rendered on such issue, and the Court having refused the motion, the refusal of the motion was made a ground for the new trial.
After the evidence was closed, defendant’s counsel insisted, that he was entitled to open and conclude the argument of the cause before the jury. The Court ruled otherwise, and this ruling of the Court was also incorporated amongst the grounds taken in the motion for a new trial. The Court below overruled both grounds.
[1.] The issue in this cause was not ordered by the Court to try a matter collateral to the main issue, and necessary to be determined before the trial of said main issue could proceed ; but it was an issue which involved the plaintiff’s right to recover, and was a principal issue. In all such cases, the party dissatisfied with the verdict of the jury may appeal, as a matter of right, upon complying with the terms imposed by the statute.
[2.] In regard to the right to open and conclude the argu•ment before the jury, we will simply remark, that the burden of proof lay on the plaintiff, to prove his mortgage debt, as well as all matters preliminary to his right to have judgment of foreclosure, and the burden of proof thus resting upon him, he had the right to make the concluding argument to the jury. On the bill of exceptions, therefore, of the defendants in the Court below, we affirm the judgment of that Court.
The plaintiff brings up the same cause, and assigns error on the rulings and decisions of the Court during the progress of the trial.
[3.] The plaintiff’s counsel moved to strike out the defendants’ pleas. The first plea set out a special contract be*216tween mortgagor and agent of mortgagee, that the mortgage was to be given up and cancelled, whenever the defendants should turn over to plaintiffs attorneys a sufficient amount of collaterals or notes which were solvent and collectable, to pay off and discharge the amount of the indebtedness of the firm of Mason & Dickinson to the plaintiff. The plea avers, that they paid to plaintiff’s attorneys, in cash or its equivalent, the sum of five hundred and ten dollars, and delivered also, in good collectable collaterals, the sum of nine-hundred dollars or thereabouts, and tendered to them the full amount of the balance due on said mortgage debt in col-laterals ; and on their refusing to accept the same, in compliance with said agreement, the defendants offered and tendered the one-half of the balance due on said debt, after deducting the five hundred and ten dollars in cash, and the nine hundred dollars in collaterals so paid and delivered before that time — in cash and deliver the remainder in collaterals, provided the said plaintiff’s attorneys would cancel and deliver up said mortgage, according to the agreement. It was objected to this plea, that it is not averred that the collaterals which were tendered were on solvent persons and collectable, and that they are not brought into Court and tendered in the plea. The Court below-overruled the objection. It was the contract, that the collaterals or notes were to be solvent and collectable, and the plea must show that the collaterals tendered were of the description bargained to be received; if they were not, the plaintiff was under no obligation to receive them. The plea ought at least to have averred an offer to deliver them in Court. In these respects the plea is defective, and ought to have been stricken out.
[4.] The sayings of Hobbs ought not to have been received against the plaintiff, except when engaged in the performance or execution of the duties of his agency. The sayings of an agent, except as it forms a part of a transaction, are not admissible against his principal. They are then received as *217auxiliaries in construing the act, and arriving at the purpose, object, and intent of the parties.
[5.] The Court ought to have charged the jury, that the defendant should have pleaded that the collaterals or note» solvent and collectable, were tendered to the plaintiff; and if he refused to receive them, that they had brought them into Court or were ready to bring them, tobe delivered to the plaintiff in discharge of their contract.
The plaintiff was entitled to the security which was to be substituted for the mortgage, before he could be compelled to relinquish the security he'had.
A tender bars the action, but not the right; and upon being pleaded, and proof of it being made by the defendant on the trial, the plaintiff would be compelled to pay the costs, provided-he did at Court what he had offered to do, and which the plaintiff had refused, and that amounted to a compliance’with his undertaking in all respects.
We overrule the other points made by the plaintiff in error in this case. We reverse the judgment of the Court upon the points indicated, but inasmuch as it might further the ends of justice to allow the case to be re-tried, we so order.
Judgment reversed.