#### JOHN R. MYERS v. S. B. CHERRY.

Where the-question between the parties was, whether the plaintiff had'agreed with a third party to take him for the performance of the contract sued’ on, instead of the defendant, and the tender of a sum of money by such third party, and its refusal and the concomitant expressions of the plaintiff, were relied on against him, it was Reid that a receipt prepared by him and offered as the- condition on which he would receive the money, was competent evidence.

This was an action of assumpsit, tried before Howard, J., at the last Spring Term of Beaufort Superior Court.

The action is brought against the defendant as surviving partner of the firm of Braswell & Cherry, and the plaintiffs declared, 1st, upon a special contract to pay plaintiffs for carrying the mail, as set forth in the evidence, from July 1st, 1836, to October 1st, 1856, and also in the common counts for wrork and labor done. Braswell & Cherry obtained a contract from the general government to cany the mails from Washington to Wilson via Greenville, for the four years, commencing July 1st, 1855, and ending July 1st, 1859, and they were, by terms. *145oGthe contract, to carry.them-'fronxsWashington'to Greenville by- steamboat.

Plaintiffs owned a steamboat running between these points,, and they contracted, with .Braswell & Cherry to carry, the-mails, each way, sixdimes a week for-four years, commencing July 1st, 1855, for the. sum of $1250, .to be paid quarterly. Plaintiffs complied with the contract up to. October 1st, 1856, and Braswell & Cherry, paid up; regularly, each qiiarter for the first four quarters,-..but refused,to pay,for- the fifth.. Bras-well died in May,. 1856-

The defendant then-introduced J.' JIB.Pender, who-testified that on the-1st of July, 1856, he-bought of Cherry, surviving partner of Braswell .&..Cherry, all- the horses, coaches, &c., belonging .to the mail .line, from Washington to-Wilson, and gave Cherry a bond .to-faithfully execute the contract with the general government; that he wrote to the-plaintiffs stating the purchase, and proposing to continue.the contract;,, that plaintiffs sent- him word that they would be up and see-him ; that he wrote to the-plaintiffs several letters and received answers, one-of whicli.-letters, was as.follows:

“Greenville, July 1st, 1856..

“Mr. John Myers — Dear Sir: Yours of the 2nd instant, is-received ; in reply, I wish you to continue carrying the,mails as heretofore, untilT see yon, whiclr-will be soon as.-I can get my business arranged ‘ here, and in--the-mean time,-please-inform .me whether or not-you will- do-. so. Direct yours to* this place. Yours respectfully,

Jos.- Jno.< Pender.”

The witness further.swore, that between the 8th. and 15th of July,.one of the plaintiffs, R. L..Myers, came to Tarbora’, the residence of the witness, and submitted "to him,a contract, in writing, to carry the mail for the balance.of the-four years; that he refused to bind himself for any particular time, but told Myers to go on as they had been doing;, that he seemed to get angry, and told him that he should go to Washington City and oppose the transfer of the contract to him, Pender, and immediately left; that at the time of the payment for *146.the quarter, he went to plaintiffs and offered to pay, but did net, because they would not give him a receipt in his own name, and insisted on his receiving a paper which he did not like. The plaintiffs’ -counsel then showed the witness a receipt, in words and figures following, viz:

“ Received, Washington, N. C., -8th October, 1856, of Mr, T. R. Cherry, surviving partner of Braswell and Cherry, by the hands of J. J. B. Pender, three hundred and twelve dollars and 59 -cents, in full for mail service by steamboat “ Governor .More-head,” for one quarter, ending 30th September, 1856, $312,.5$. John Myers & Son.”

And asked him if the plaintiffs did -not offer to accept the money and give him that receipt. Witness answered, that they -offered to receive the money and to give him a paper, perhaps that, but that he eould not identify it. Thomas Myers testified, that the receipt produced, was the paper offered ; that he was present at the time it was offered, made a memorandum on it and preserved it.

The defendant’s counsel objected to the production of the receipt, to the questions about it, and to its being read to the jury, but the Court over-ruled the objection. Defendant’s counsel excepted.

Yerdiet and judgment for plaintiff. Appeal by defendant.

Rodman for plaintiffs.

Warren and Donnell, for defendant.

Manly, J.

Upon the trial before the jury in the Superior Court, the case was. made by the parties to turn upon the enquiry, whether J. J. B. Pender had been substituted for defendant in his contract with plaintiffs, and, conseqently, whether Pender was the debtor instead of defendant. To establish the affirmative of this enquiry, the defendant introduced Pender, who, in the course of his testimony, stated that ■he had offered to pay the quarter’s dues for which this action is brought, but he had not paid it, because plaintiffs were unwilling to give him such a receipt as he wished.

*147IJpon the cross-examination, the receipt was produced and identified as the one in question. The defendant objected to its introduction, and the over-ruling of this objection is the ground for the single exception, which appears upon the record.

The evidence is clearly admissible. The defendant attempted to show that Pender was accepted as the debtor, by show* ing that plaintiffs negotiated with him. It was surely competent for plaintiffs to show in reply, in what capacity they treated with him-. The receipt was competent for that pur* pose, as a declaration made at the time, and -constituting a part of the res gestm; and is also competent as the best evidence of a matter which the defendant had attempted to prove, viz., the purport of the receipt. In either point of view, the evidence was admissible, and there is no ground for the exception.

Per Curiam,

Judgment affirmed-.