So far as the plaintiffs’ request for instructions sought to separate a part of the testimony from the rest, so as to make the verdict operate as a special finding by the jury upon the particular testimony, about which the dispute arose, it was a matter entirely within the discretion of the judge to allow it or not. No exception lies to the manner in which he exercised that discretion.

The judge did, in effect, by the instructions which he gave, require the jury to find the fact that was involved in the disputed testimony, before they could render a verdict for the defendant. This was done so explicitly that the jury could not mistake its purpose and importance. But as the judge told the jury that the agreement need not “ be proved in so many words,” but might be deduced from all the evidence, “ including the acts as well as the declarations of the parties,” and “ all the facts and circumstances,” the precise question raised by the plaintiffs’ request must be considered and determined, namely, whether all the testimony in the case, excluding the alleged but disputed statement of the plaintiff, “ was insufficient in law to warrant them in finding a verdict for the defendant; ” it being upon an issue in which the burden of proof was upon the defendant.

This is the common question, so often decided, yet upon which no decision can furnish the precise rule or measure to be applied to another case. It is, whether there was any evidence, proper to be submitted to a jury, upon the question at issue. A majority of the court are of opinion that there was.

We know of no rule which requires that such an agreement to give time to a principal, by which a surety will be discharged, must be in writing, or in any precise form of words, or even in express language at all. It is a question of mutual understanding and intention, and, like other contracts, the agreement of the parties may be derived from and inferred by acts, declarations *77facts and circumstances. When such are the sources from which the mutual agreement of the parties is to be gathered, it is for the jury to determine what the intention and understanding were, if any, upon which the minds of the parties met. That is their contract. In doing this, they are not bound to give all parts of the testimony equal weight. They may believe a part and reject a part; and the court cannot correct their judgment upon the testimony by its own. Upon the evidence in this case, certain elements or conditions of a sufficient agreement are satisfactorily shown. 1st. The plaintiffs’ knowledge, that Wright was a surety merely, may be inferred from the position of his name upon the paper. 2dly. Procuring the name of Ball upon the new security was a sufficient consideration for such an agreement. The only question of doubt then was, what was the understanding or agreement with which the new note or draft was procured and sent by Henry and accepted by the plaintiffs ? The jury might have been satisfied, from the testimony of the plaintiffs, that, before the maturity of the draft, an arrangement was made with Henry that if he would send them another draft, with Ball’s name, they “ would let this run along; ” no length of time for either being then fixed. They might also have been satisfied, from the testimony of Henry, that he did send them such a draft, with Ball’s name, payable m sixty days, with a letter stating that it was “sent to take up” the one now in suit; and that the plaintiffs accepted it.

This statement of Henry, if believed, would have tended strongly to establish the defence of payment, but for the fact that the new draft at sixty days was not a full equivalent for the other, by the amount of the interest or discount for that time; and the testimony of the plaintiff was probably introduced to meet and parry that defence, by showing that the acceptance of the new draft was not as payment, but only in pursuance of their previous arrangement and promise to let the first draft “ run along.” Now the previous arrangement, indefinite as to time, being thus connected with and completed by the sending and acceptance of the new draft, upon a definite time, the jury might infer from the whole transaction, taken *78together, that it was understood and intended by both parties that the time of payment should be extended until the new draft should mature. If they found from these facts that such was the agreement of the parties in this case, we cannot say, as a matter of law, that such finding was erroneous or unwarrantable upon the testimony.

We are of opinion, therefore, that the instruction, as asked for, should not have been given.

To the other exception there are several answers. The second draft-might have been considered as a renewal or extension of the first; and thus account for the allegation that time had been given to the principal, without any inference that Henry was false in denying that he had the interview of which the plaintiff testified.

But the allegation relied on to contradict Henry, although contained in a joint answer, does not purport to be an a ¡legation on the part of Henry, but of Wright alone.

A more conclusive answer is in the terms of Gen. Sts. c. 129, § 72. In a case in Suffolk County, Walcott v. Kimball, post, 460, decided since this case was argued, this court have held that that statute forbids the use which the plaintiffs’ counsel sought to make of the allegations in the pleadings. He has therefore no ground of complaint against the remarks of the judge in this particular. Exceptions overruled.