#### W. L. RHODES, TO THE USE OF E. W. JONES vs. JOHN B. CHESSON, et al.

Though, by statute, payment of a bond may now be pleaded, and anything agreed to be received in satisfaction will amount to payment, if the agreement be executed, so that the thing becomes at once the property of the obligee, yet it is otherwise of a verbal agreement to deliver at a future day, in which ca^e the rule of the common law, co ligamine, quo ligaiur &c., applies,

Where the terms of a verbal agreement are ascertained, its construction, like the construction of a written contract, is matter of law for the Court.

(The cases of Pcsicrman v. Parker, 10 Ire. 474; and Young v. Jeffreys, 4 Dev. & Bat. 216, cited and approved.)

This was an action of debt, originally commenced by warrant, and carried by successive appeals to the Superior Court of Washington county.

On the trial, before his Honor Judge Manly, at June Term, 1853, the plaintiff exhibited in evidence a bond executed by the defendants, and proved its due execution. To sustain the plea of payment, the defendants introduced one James E. Rhodes, who testified that after the bond became due, and before suit, he had a conversation with the, plaintiff Rhodes, and that the plaintiff stated, that he had borrowed notes of the defendant, J. B. Chesson, and that he was to pay him- again in notes, and that the bond now in suit, was to be one of them. The amount borrowed of Chesson was proved to be upwards of $200. At the time these notes were borrowed, no note or obligation in writing was given, and the bond now in suit was then due.

His Honor was of opinion that the substance of the agreement thus concluded, was that the plaintiff became indebted to the de= *337fendants, upon borrowing the notes in question, to the amount of the notes less the amount of' the one in suit, and the effect therefore was, the extinguishment or payment of said note. Upon this intimation of the opinion of his Honor, the plaintiff submitted to a nonsuit. Rule for a new trial — rule discharged, whereupon the plaintiff appealed to the Supreme Court.

W. N H. Smith, for the plaintiff.

Heath and Hines, for the defendants.

Peaeson, J.

The only question is the construction of the contract, and we are to take the terms as stated by the witness. His Honor was of opinion that the legal effect was a payment of the bond sued on. We have come to a different conclusion.

At common law a bond could not be discharged except by an instrument under seal, eo ligamine quo ligatur.

The statute of Ann allows the plea of “ payment.” Payment may be made either in money, or in money’s worth ; but to amount to a payment, the thing must be done, the money must be paid, or the thing taken as money must be passed so as presently to become the property of the other party. A promise or undertaking to pay either in money or other thing, is not a payment ; the contract is executory, whereas payment is executed, a thing done.

When the plaintiff borrowed of the defendant the $200 worth of notes, the contract was, that he was to return the amount so borrowed in notes, and “ the bond now sued on was to be one of th em. ” It is not stated what credit was given, winder a month, six months, or a year ; but as a matter of cmxsefmfs¿^Sf^s some credit. This is a necessary implication yáíSffftJhe nátureVof the transaction ; for why borrow notes, if tMulfSmtiff had^Mickiime other notes, and was then and there resferto rqga^ytAsuch notes? Say the credit was five days, the contracMj^Oexec utomyakd/the effect of it is, that the defendant relied i>n tih^iSraís epr the plaintiff to repay at a future day in others nMes, of winch the bond now sued on was to be one. No differeSSeTkmacle between the bond and the other notes. If the understanding was that the bond was to b.e handed over presently as part payment, why is it *338left on the same footing with the other notes in which the repayment was to be made ? The bond was then due, why was it not handed over at the time ? or, if the plaintiff did not have it with him, why was it not understood that it should be considered as then paid over, and be handed to the defendant as soon as convenient? According to the terms of the agreement, the bond was put on the same footing with the other notes, and there is no more reason for saying the contract was executed in regard to it, so as to amount to a payment, than there is for saying the same in regard to the other notes.

If there had been any doubt as to the terms of the agreement, it would have been proper to leave the question to the jury, with the necessary instructions ; but the evidence as set forth in the record left no question of fact open ; and we agree witii his Hon- or that it was his duty to put a construction on the agreement, the terms being fixed by the evidence. Questions of construction are to be decided by the Court ; and it makes no difference whether the agreement is written or verbal. Festerman v. Parker, 10 Ire. 474; Young v. Jeffreys, 4 Dev. & Bat. 216.

Per Curiam. Nonsuit set aside, and venire de novo awarded.