Russel

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

Upon the trial of this cause, which was a bill in chancery for specific performance, the defendant’s counsel asked the court to instruct the jury that “ The acceptance of payment by Amador, the defendant, from Russel, the plaintiff, under a protest that the contract incorrectly described the land intended to be conveyed, cannot be construed into a waiver of any rights which Amador claimed to have, to defend against Russel’s claim for a larger amount of land than that which Amador claimed to have conveyed,” which instruction was refused and the court charged the jury, “that the acceptance of payment by Amador, under a protest that the contract incorrectly described the land intended to be conveyed, was a circumstance from which the jury had a right to consider, whether the fraud, if any, in obtaining the execution of the contract, was waived by Amador or not.”

*403 The instruction asked, was correct and pertinent to the issue. The question whether Amador was estopped from setting up fraud was before the jury, and the court should have instructed them, that the receipt of payment under protest did not amount to…