Weymouth v. Babcock , 42 Me. 42 ( 1856 )

Goodenow, J.

The defendant Brown has been defaulted, and thereby admits his liability to have judgment rendered against him. The receipt given by the plaintiff to Babcock, dated April 19, 1853, was intended as a discharge of Babcock from his moiety of the note in suit, and not intended as a discharge of Brown. Brown was not a party to it.

Whatever may have been the law as to the effect of payment of part of the demand in lieu of the whole, and as a discharge of the whole, before the statute of June 3, 1851, c. 213, it is now the law that no action can be maintained in any court of this State, on a demand or claim which has been settled, canceled or discharged by a receipt of any sum of money less than the amount legally due thereon, or for any good and valuable consideration, however small.

As to Babcock, whether the full amount of his moiety of the note was paid by him, or less than that, the receipt discharges him. And, by the terms of the receipt, we are of opinion that he is not entitled to costs.

The plaintiff is entitled to judgment against Brown for one moiety of the amount due on the note, April 19, 1853, before the payment made by Babcock, and interest on the same, deducting any payments since made by Brown. Shaw v. Pratt, 22 Pick. 305; Pond & al. v. Williams, 1 Gray, 630.

Plaintiff has leave to discontinue as to Babcock without costs. Judgment against Brown for damages, as above stated, and for costs.

Tenney, C. J., and Rice and Appleton, J. J., concurred.