WADSWORTH

v.

WARREN

Mr. Justice STRONG delivered the opinion of the, court.

Were this case before us on a motion for a new trial we might feel constrained to send it back to another jury. But it has been brought here by a writ of error, and we cau, therefore, reverse the judgment only for errors of law apparent in the record.

The testimony respecting the circumstances attending the transaction in question is contradictory. On the part of the defendant it is that he refused to accept the lease without having Osgood bound with him; that the plaintiff’s agent 'agreed to take Fleming in his and Osgood’s place, and agreed that when Fleming signed the contract ho would indorse on it a release of Warren, saying it Avould avoid the necessity of sending'a new lease to Wadsworth, the plaintiff, for his signature. On the other hand the plaintiff’s agent denies that he promised to release Warren, and states that he told him he was the only man he looked to for the rent. lie states .further that the defendant brought Fleming to him, that both signed the lease and a duplicate thereof, and that the duplicate Avas delivered to Fleming and the defendant. The lease is dated April 20th, 1867, and on the duplicate retained by the plaintiff’s agent there appears an assignment of all his interest in the lease by the defendant to Fleming. This assignment is dated April 27th, 1867, but it was evidently made on the day on which Fleming’s signature to the lease Avas made, for there is no evidence that the duplicate retained by the plaintiff’s agent Avas ever seen by the defendant after Fleming signed it. Coupling this with the evidence that He Koven, the plaintiff’s agent, had agreed to take Fleming in the place of Osgood aud Warren, and had said that signing the instrument in the manner in which it was signed, would avoid the necessity of sending a new lease to WadsAvorth, the lessor, for his signature; coupling it also with the other evidence, given by the defendant himself, that he did not accept the lease, or deliver the deed, we think it was a question to be submitted to the jury whether the contract had ever been consummated, or, in other words, whether it had been delivered and accepted as the contract of the defendant. It was not, therefore, erroneous to refuse the instruction prayed for, namely, “that the jury, upon the evidence given, should find the issue for the plaintiff.”

The other prayer of the plaintiff for instruction was substantially granted. The court, Avhen speaking of the alleged promise of De Koven to' release Warren from the lease, said it Avas a verbal promise not executed, and, “ if such was the agreement, Warren would have to look to He Koven for a breach of it, and would have no defence here.” And again’ the court said: “ The mere verbal promise of De Koven to release Mr. Warren would not be a good defence here, I think, but would leave Warren to turn over on De Koven for a breach of promise.”

Tlie remaining exceptions taken to the charge cannot be sustained.' It may be admitted, as contended for, by the plaintiff in error, that when a deed has been delivered, and the delivery has been accepted, a verbal agreement between the parties, made at the time of the delivery, or previous thereto, that one of them should be released from the covenants contained in the deed, cannot defeat an action at law brought for an alleged breach of those covenants; but the charge of the court was in harmony wdth this doctrine. It may also be conceded that there can be no conditional delivery of a deed to the grantee, or covenantee, therein named; but nothing in the charge intimated that there could he. The question submitted to the jury was, whether there had been any acceptance of the lease by the defendant. This was equivalent to submitting the inquiry, not whether the deed had been delivered on condition that Warren should be released afterward, but whether it had been delivered at all as the deed of the defendant. That such a submission was proper, in view of the evidence, we have already said.

Judgment affirmed.