WRIGHT, J.

The answer set up as a defense, that the note on which the action was brought, was made by the defendant, without consideration, to accommodate one Ralph Pomeroy, and that after it became due and payable, and before the commencement of the action, it was fully paid and satisfied to the plaintiffs by Pomeroy. The defense, then, was payment.

To sustain it, the defendant was allowed to prove, in substance, these facts: The note was made for the accommodation of Ralph Pomeroy, who was one of the firm of Thompson, Skillman Co., the payees named in it, and was by him transferred to the plaintiffs, with other notes, as collateral security for money due by him to them. In May, 1855, Pomeroy entered into a written agreement with the plaintiffs to pay his debt to them in lumber, at certain prices specified in the agreement, to be delivered at different times, during the next summer and fall, and the plaintiffs agreed to return to Pomeroy such paper (or securities) held by them, to the amount of such deliveries as he might require to be returned. Under and in pursuance of this agreement, and another extending the time for Pomeroy to perform it, he delivered to the plaintiffs (who sold and received the proceeds) lumber at the prices designated in the agreement, amounting in value to $8,840.25. After this amount of lumber had been delivered, and about the 16th July, 1856, Pomeroy notified the bank of his wish to withdraw the note in suit. At this time none of the notes held by the bank as security for Pomeroy's debt had been withdrawn.

The agreement between Pomeroy and the plaintiffs was objected to as inadmissible under the pleadings, and as a surprise upon them, the answer giving no notice of an intention to introduce such evidence; and after the evidence was closed, their counsel moved to strike out of the case all the testimony respecting the agreement, and what was done under it, on the ground that such testimony did not sustain the allegations of the answer, but made a different case from the one therein set forth. What the counsel meant by this, would not be clear, unexplained by his points and the argument at bar. It seems to have been this: The answer simply alleged payment, which, as it is claimed, in legal contemplation, means payment in money, and evidence to prove payment in any other way than by cash, did not sustain the allegations of the answer; that the answer gave no notice of the defendant's intention to prove payment in any other way than by cash; it did not set forth or disclose the particulars of the transaction between Pomeroy and the plaintiffs, and hence the unexpected admission of proof of the transaction, under such a pleading, surprised them. There is no force in these objections, considered as a question of pleading. The answer alleged payment, and it was competent, under the pleading, to prove that payment had been, in fact, made either in cash or in some other way. If payment be relied on as a defense, it would be bad pleading to allege the evidence of the fact, instead of the fact itself; and when the fact of payment is pleaded, there is no rule requiring the evidence, or a concatenation of evidence, establishing payment, to be alleged in the pleading to render such proof legally admissible. In this case it was not required that the particular facts relied on as amounting to payment, should have been set forth in the answer. It was enough, if those facts sustained the plea of payment. If the particulars of the transaction between Pomeroy and the plaintiffs was not sufficiently disclosed by the answer, the plaintiffs' remedy was a motion under the 160th section of the Code. They could not accept the plea, and go to trial upon it, and then interpose the objection, for the first time, that it was not sufficiently descriptive of the particulars relied on as constituting payment. Nor was there any question of surprise in the case. That arises where there is a variance between the allegation of a pleading and the proof. Admitting competent proof to sustain an action or defense, though its admission was unexpected by the adverse party, raises no question of surprise, entitling the disappointed suitor to be relieved on that ground.

There was no reason, then, for excluding evidence of the transactions between Pomeroy and the bank, because of defectiveness in the pleadings.

The judge was requested and refused to charge: 1st. That the defendant's evidence did not sustain the defense set up in the answer, and that the plaintiffs were entitled to a verdict; and, 2d. That none of the agreements between Pomeroy and the bank inured to the benefit of the defendant, or could be taken advantage of by him in this action. These requests, in the view I take of the case, were properly refused. Indeed, I think, the evidence sustained the defense, and being entirely uncontradicted, called for the submission of no question to the jury. The note sued on was made for the accommodation of Pomeroy. The plaintiffs had received it from Pomeroy, and held it and other notes as collateral security merely for debts owing to them by him. In May, 1855, an agreement was executed between Pomeroy and the plaintiffs, by which they agreed to take lumber at prices designated in payment of his indebtedness, and of the collaterals held by them, and that Pomeroy might specify the collaterals to which the payments should apply. Under and in pursuance of this agreement, Pomeroy delivered to the plaintiffs lumber amounting in value to $8,840.25, and they accepted the lumber, sold it and received the proceeds; and Pomeroy notified them of his wish to withdraw the note in suit. I see not why, upon Pomeroy thus requiring the note to be returned to him, the defendant was not entitled to have it deemed paid. It was not a business note, but one made for Pomeroy's accommodation, and the bank held it and others as collateral security merely. The bank agreed to take lumber from him in payment of his debt and the collaterals, and that he might specify the collaterals to which the payments should apply. After sufficient lumber had been delivered and accepted to satisfy it, he designated the defendant's note as one to be deemed paid. I concur with the court below, "that, from the time of such designation, the note was, in fact, paid, not only as between Pomeroy and the plaintiffs, but as between the defendant and the plaintiffs."

I am for affirmance of the judgment of the Superior Court.

DENIO, Ch. J., DAVIES, PORTER and DAVIS, JJ., also concurred in affirming the judgment; BROWN, J., read for reversal.

Judgment affirmed.