OTT against LYONS, 2 Whart. 441

The opinion of the Court was delivered by Rogers, J. The admissibility of the evidence depends on the construction of the agreement of the 28th of January 1826.

The counsel for the defendant in error, have treated it as a ratification, in all its parts, of the previous' agreement between Whitesell and Lyons ; but if this "be so, it is not easy to perceive why the agreement of 1826 was made, for the assignment of itself worked no change in the rights and obligations of either party; they remain precisely as before the assignment. ,But the parties must have had something else in view, for the latter is not a ratification of the former, but a new and distinct agreement between the assignee and obligor, entered into after the assignment, containing a different stipulation by Lyons, without reference to the performance of the covenants'contained in the first agreement. ■ The former agreement is incorporated in the latter so far as respects the covenants of the obligor, but no further; the engagements of the obligor are entirely changed; and this seems to have been t.he reason, the assignee and obligor have entered into a new contract.

The agreement of the 28th of January 1826 recites that Beter Ott had purchased from Andrew Whitesell, “ the bonds and obligations of the within-named Robert Lyons,” referring to, the -bonds and obligations which remained unpaid, and not to those which had been cancelled by Whitesell before the assignment.

Ott having, by the assignment of the 22d of October 1823, become owner of tne bonds and mortgage, covenants that he will fulfil the conditions and stipulations contained in the former agreement, viz: that he will allow further time for payment; in consideration of which Lyons agrees that he will pay Ott, the assignee, on the 1st of April then next ensuing, one hundred dollars, with the interest on the whole sum, and so on yearly, and every year, one hundred dollars, with the interest, until the whole obligations are paid.

It is further provided, that in case Lyons fail to comply with the agreement, it shall be at the option of the obligee to consider the agreement void, and to proceed upon the bonds and mortgage. The only mode, therefore, by which the defendant could defeat the action.which was brought to enforce the payment of the whole amount, was by proof of the performance -by him, of the last agreement, viz. by payment of one hundred dollars, on the 1st of April 1826, with the interest, and a payment of a like sum at each succeeding 1st of April, until the whole debt was paid.

But the evidence does not tend -to prove performance of the agreement between Ott and Lyons; it shows nothing further, than that Lyons had fulfilled the agreement between himself and Whitesell, with which the latter agreement has nothing to do, except so far as its stipulations are incorporated in the new contract.

The evidence was therefore admitted, not only on erroneous principles, but misled the jury; for it is conceded, that without taking into the calculation the.payments which had been previously made to Whitesell, Lyons had failed to comply with the contract, and that it was at the pleasure of the plaintiff to consider the agreement void, and to proceed upon the bonds and mortgage. This disposition of the principal part makes it unnecessary to decide whether the notice of special matter was sufficiently explicit.

As this cause will go to another jury, it may be material for the counsel to inquire what, if any, was the consideration of the promise of the forbearance either in the first or second agreement. Judgment reversed, and a venire de novo awarded.