The opinion of the court was delivered by

These three cases involving the right of the plaintiff to recover upon mechanic’s liens filed against the owners and the builders, were before this court upon another phase in Kaighn, Trustee, v. Friday et al., reported in 48 Vroom 709, and as a result of that review the cases were tried anew upon a venire de novo. The result of the second trial is before us upon writ of error removing a judgment in favor of the plaintiff based upon the direction of a verdict by the trial court. By a stipulation entered into between the parties the issue was limited to the question of payment, and this court, upon its previous review of the ease involving a consideration of that stipulation, held that the effect was to exclude all other defences. Upon this trial the case was tried by attempting to prove payment inter alia by two methods — first, by an adjudication in bankruptcy of the contractor, Garrison, in which proceeding the plaintiff, it was contended, sought to prove its claim against the contractor, which claim included the amount due upon these lien claims, and it was insisted that a .pro rata pa3onent of a share of Garrison’s estate had been made to the plaintiff which should be credited upon this demand; and secondly, by proving actual payment by Garrison to the plaintiff by a surrender of his stock holdings in the plaintiff’s company under an oral agreement with the plaintiff’s officers, that the absolute surrender of the stock should cancel the indebtedness of Garrison to the plaintiff, including the amount claimed to be due upon these lien claims. To prove payment by the first method the defendants offered at the trial by consent of the parties a special plea by Garrison which was objected to as insufficient and immaterial, and the plea was overruled as though a demurrer *571had been- filed thereto, and this action of the trial court is assigned as error. To prove payment in fact Garrison testified that his stock held at the time by the plaintiff as collateral seenrity for the payment of his own indebtedness was surrendered by him to the company in full payment of his entire indebtedness to it, including the amount claimed in this controversy upon these lien claims; and that the company had accepted it as full payment in an oral agreement to that effect, entered into by Garrison and the representatives of the plaintiff in the presence of one Pharo, who also testified to the making of such an agreement in his presence. The making of this agreement was contradicted by the president and secretary of the company so that a distinct issue of fact was thus presented upon the essential issue litigated in the cause. Upon the question raised by the overruling of the plea we find it unnecessary to pass, since the plea was never entered upon the record, and forms no part of the pleadings before ns.

Upon tbe second inquiry whether in view of the existence of a distinct issue of fact whether the surrender of the stock of Garrison had been accepted by the company in full settlement of the indebtedness litigated upon these lien claims, we think there was a controverted question of fact for the jury to determine, and that the trial court erred under the circumstances in ignoring it and directing a verdict for the plaintiff.

The judgment will be reversed and a venire de novo is awarded.

For affirmance — White, J. 1.

For reversal — The Chibe Justice, Gabrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Kausch, Bogert, Yredbnburgh, Congdon, JJ. 11.