The defendant under two contracts agreed to pay Nertney $17,650 for. doing the work therein specified. The payments were required to be made in installments. The work was completed August 9, 1907, and on that day Nertney signed and delivered an order on the defendant to pay $1,000 to the plaintiff, and to deduct it from “my next payment.” The plaintiff asserted and the defendant denied that this payment was accepted on August 22, 1907, by the defendant. The defendant made and delivered to Nertney notes aggregating $500, which were indorsed to the plaintiff and paid. The plaintiff claimed that this payment was on account of the $1,000 alleged to be due from the defendant. The defendant claimed that this payment was in full satisfaction of every amount due and disputed that at the time $1,000 was due. .
The only question submitted to the jury by the trial justice was whether the defendant accepted the order of August 22, 1907. The defendant contends that nothing was due to Nertney from it, and that the payment of the notes was full satisfaction, and therefor insists that it was error to submit to the jury the single issue as to the acceptance of the order. The amount due from the defendant to Nertney was the subject of dispute, and should have been submitted to the jury for their determination, and, if the order was in fact accepted, the de*840fendant was liable to the plaintiff for the amount which it owed Nertney. The contractor could not make a valid order on the defendant for a greater sum than was due to him from it. The acceptance of the order operated as an equitable assignment only of the balance due. Nor can the defendant be held for the amount of the order merely because of its oral acceptance, if the amount of the order was in excess of the sum due from it.
'The issue as to the amount due from the defendant was withheld from the jury, and they were permitted to determine merely the issue as to the acceptance of the order. The court charged the jury, subject to the exception of the defendant, that, “if the plaintiff is entitled to recover at all in this action, he will be entitled to recover $500, with interest.” This instruction was erroneous, because it excluded the jury from considering the principal issue in dispute between the parties.
The judgment and order are reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.