By the Court, Cowen, J. The request of the plaintiff was that the defendant should pay the forty dollars, to be applied on one of the notes, which money he promised to apply on one of them. In this he reserved an option, as he had a right to do, though one of the notes was not yet due. The defendant refused to make the payment; but Wilson took the oxen in lieu of the money, to be applied on the smaller note, should the plaintiff agree to that. This was not, as the court below supposed, a payment to the plaintiff.

Of course the defendant .could not give the money a direction within the rule which the court laid down. Here was a new and independent agreement between the defendant and Wilson, subject to be adopted and acted upon by the plaintiff. It was thus quite material to look at all the acts of the plaintiff, including his answer when Wilson informed him of what he and the defendant had been doing. Such a declaration was a part of the res gestee. The plaintiff never endorsed the forty dollars on the small note, as the defendant insisted he should. On the contrary he made the endorsement on the large one.

His taking the money of Anderson on the order received by him in exchange, made nothing against him. In short the parties acted throughout at cross purposes, unless indeed, on Wilson’s return, the plaintiff in truth assented to a change from his purpose as expressed in the written request. So far from that, he in effect proposed to show actual dissent, which the court held to be inadmissible. The only consequence of receiving the amount from Anderson was to render him liable for it to Wilson, as money had and received.

On the other hand he (Wilson) was obliged to pay the defendant for the oxen as for goods sold and delivered. Independently of the plaintiff’s assent, the transaction between Wilson and the defendant was res inter alios acta. On the whole, we think the court below erred; that the judgment must be reversed, and a venire de nova go from that court for a re-trial. Rule accordingly