As the agreement between Kinsley H. and Clark G. Batchelder was never executed, it did not auiount to a payment or ex-tinguishment of the note in suit. Folsom v. Plumer, 43 N. H. 471; Carey v. Bancroft, 14 Pick. 317; Rochester v. Whitehouse, 15 N. H. 473. The plaintiff cannot be estopped to deny the execution of that agreement, as he was in no way party to it or informed of it, nor indeed does the defendant appear to'have been. The defendant’s exception must therefore be overruled.