Mead v. Brooks , 8 Ala. 840 ( 1846 )

COLLIER, C. J.

The object of the evidence adduced by the defendant, though not explicitly stated by the bill of exceptions, was doubtless to lay a predicate for the presumption that the cause of action set up by the plaintiff had been fully discharged. This inference it is supposed was fairly deducible from the fact* that subsequent to the defendant’s assumption, the plaintiff made his note to him for a larger amount, apd afterwards discharged that note in toto, without claiming a deduction for, or saying any thing about the indebtedness of the defendant. It is clear that such a state of facts was not irrelevant to the issue, and certainly were well worthy of consideration by the jury in determining whether the liability of the defendant was still subsisting.

It is then material to inquire whether the testimony objected to was rightly received. There can be no question but the general rule in regard to the admission of parol proof of facts which are evidenced by writing,is quite as stringent as has been insisted for by the plaintiff. But does not the case at bar form an exception to the rule ? Can the presumption be indulged after a note or other evidence of debt has been discharged and delivered to the debtor,that he still retains it in his possession? We have upon several occasions intimated otherwise, and still think that in such case parol evidence is admissible to prove a payment, without calling upon the party to whom the writing was delivered, to produce it. [P. & M. Bank of Mobile v. Borland, 5 Ala. Rep. 531; P. & M. Bank of Mobile v. Willis & Co. Id, 770; See also, Berthoud v. Barboroux, 4 Louis. Rep. N. S. 543.]

It results .from what has been said, that the law was rightly ruled by the Circuit Court. Its judgment is consequently affirmed.