The opinion of the court was delivered by

The endorsement of the note in this case, was undoubtedly prima facie evidence of the title of the plaintiff. There was no evidence that the firm of Charter & Webb was actually dissolved. They may have stopped business so far as it respects selling goods, and the partnership have continued as to all the debts due to, or from the firm. It appears that after they had stopped their mercantile business, they kept a counting-room in New-York, and wrote a letter to one of their correspondents in the country, in relation to this claim against these defendants. The question then is, was the note paid prior to the endorsement, or had it ever been, in fact, paid by the defendants, who received the consideration, and executed the note ? There is no evidence, nor is there any claim on the part of the defendants, that they ever have parted with any property, or in point of fact, paid any sum whatever on the note. They only claim, that if the plaintiff purchased *236the note as their agent, that it was thereby paid. The correctness of this position is very questionable. We should pause, before we should determine, that a debtor may procure an agent to buy in his debts at a discount, without furnishing him any means therefor, and then contend that such purchase is a payment. The idea of a purchase is wholly at variance with a claim of payment; and it appears by the case, that the defendants never contended for any thing except that the plaintiff was to purchase the note as their agent.

In the case under consideration however, it appears that there was no evidence of any agreement for the purchase. The only testimony in the case, was the declaration of the parties. What was stated by the defendants, was wholly denied by the plaintiff; and the statement sof the plaintiff was as strenuously denied by the defendants. The agreement contended for by the defendants, in the presence of the witness, Mr. Hall, was denied by the plaintiff, and there was no other evidence offered of any such agreement. — ■ The statement of a party, in the presence .of another, not acceded to by him-but denied, cannot be considered as any evidence of the facts stated. The defendants can claim nothing from the agreement stated by the plaintiff, when at the same time the statement was made, he denied it so positively. There was therefore no evidence in this case, which would have warranted or justifiend a jury in finding a verdict for the defendants. In another view of this case, it appears that the defendants were without defence. If the agreement had been proved to have been as claimed by the plaintiff, in the presence of the witness, to wit, that he had purchased this note, on request of the defendants, under an ágreement that he was to be paid fifty cents on the dollar, and waiving any inquiry whether such an agreement would have been considered as made upon a valid consideration, yet it is very clear that the defendants, to have availed themselves of any benefit from such an agreement, must have complied with the terms of it. Such was the decision of the court in the case of Cranby vs. Hillary, 2 Maul & Sel. 120, and such was the opinion of Lord Elenborough in Boothley et al. us. Sowder, 3 Camp. 174. In the case under consideration, it appears that the defendants have not only expressly refused to perform any such agreement as was stated by the plaintiff, but have expressly repudiated it, and denied that any such one was made. With what propriety can they claim now any benefit of any such agreement, if there ever was one made? The defendants in every point of view were wholly without defence, and the' county court *237were right in deciding that there was no evidence tending to prove that tbe plaintiff purchased the note on the consideration stated the defendants, and that the defendants could claim no benefit of the agreement, if any was made, that the plaintiff was to purchase the note, and have fifty cents on the dollar, as the defendants had not only at all times denied any such agreement, but had also refused to comply with the same. The plaintiff was entitled to recover the amount of his note and the interest, and the-jury were rightly instructed. ■

The judgment of the county court is therefore affirmed.