64 Tenn. 586 | Tenn. | 1875
delivered the opinion of the court.
The plaintiff as administrator de bonis non of the estate of M. F. DeGraffenreid brought this action against the defendant McLemore in the Circuit Court of Williamson county on a promissory note executed by the defendant McLemore and one W. F. DeGraf-fenreid to Daniel et al., former administrators, for
After the court had charged the jury, and they had retired to consider of their verdict, they came into court and asked the instruction of the court upon the following proposition: “ If the jury shall find that the plaintiff released the joint obligor DeGraffenreid from the payment of the note, and that the defendant was present at the time, knew of the release and did not object or say anything, would that discharge the defendant?” The court upon this inquiry said to the jury: “ If you find from the proof that the plaintiff released DeGraffenreid, the joint obligor, from the payment of the note, and the defendant was present and made no objection thereto, the defendant would not thereby be released. He should have made known his objection; but the fact of silence must be taken in connection with all the facts proven in the case before and after the release, tending to prove assent or dissent of the defendant, and which was known to the plaintiff and defendant to ascertain the purpose of the parties and their understanding.”
It is insisted that the charge is erroneous, and that the jury were misled by it in finding a verdict for the plaintiff. Upon the application for a new trial seven of the jurors made affidavit that they were governed in arriving at their verdict by the first proposition of the said supplemental charge. The practice of permitting the introduction of the affidavits
Reverse the judgment.