The opinion of the court was delivered by

Did the County Court err in refusing the defendant’s request to charge, or in the charge as given ? We think the defendant was not entitled to the charge requested. The effect of what the defendant said at the time the property was returned, in respect to his claim for damages,-must depend upon what the parties understood by what was then said, in view of what had before transpired between them as to the return of the property.

The defendant’s evidence tended to show that the plaintiff agreed that if the defendant would return the property to the place from which he took it, that should discharge all claim for taking and detaining the property. The plaintiff’s evidence tended to show the contrary. When the defendant attempted to *426return the property, and before it was fully returned, the plaintiff told him he should claim damages for the taking of the property, thereby repudiating the agreement. Conceding it to have been as the defendant claims, this, we think, it was competent for him to do. He had said he would accept of less than what he had the right to claim; but before the property was returned, he changed his mind, and concluded to claim damages, and notified the defendant of that fact, thereby leaving the defendant at liberty to return the property, or to keep it and take the chances of a lawsuit, with a prospect of having to pay for the property and the damages also. Now if the defendant, or his agent who was authorized to act for him in the matter, fully understood that the plaintiff declined to receive the property in full, but insisted upon his damages also, and with this knowledge chose to return the property and discharge his liability thus far, such return would not have the effect to discharge the plaintiff’s claim for damages. Whether the defendant did so understand what the plaintiff said, was a question for the jury, and was submitted to them in a charge that was appropriate and entirely correct.

Judgment affirmed.