Cridland v. Stevens ( 1898 )

Opinion by

Smith, P. J.,

By the terms of the written contract between the parties to this case, the plaintiff agreed to give the defendant a mortgage for $3,000 on land situate at Tioga, in part payment of property which, by the same instrument, the defendant agreed to convey to her. From the parol testimony, introduced on the trial, it appears that the note of William R. Brown for $3,000 was afterwards accepted by the defendant, in lieu of the mortgage. The defendant received but $2,800 on the Brown note and the sole matter in dispute here is which of the parties should bear this loss on the note. On the question whether the note was accepted by the defendant as an absolute or as a conditional payment, the trial court in charging the jury said: “ The controversy in this case comes down to a simple question of fact, which the jury must determine from the evidence, which is— was that note taken for its face value or not? Was it understood that the defendant in this case should be responsible only for the amount collected upon it? You have heard all the testimony, and you must determine from it that fact. — did the defendant receive the note as the $3,000 mentioned in the contract, or did he take it simply for what he could collect upon it?”

The appellant now complains that the charge was inadequate in that it did not explain to the jury the difference between a conditional and an absolute payment. We think, however, that the court presented this question to the jury in a very plain and concise manner, namely: Was that note taken for its face value of not? This was the exact question the jury were called upon to determine, and they undoubtedly so understood it from the instructions given by the court. If the defendant thought that a fuller explanation on this point should have been givén he could have asked for it by requesting special directions on the subject.

But neither party requested special instructions and the case was submitted to the jury in a brief charge, which, howeyer, covered all questions for their consideration. We think the case was properly for the jury. It is undoubtedly true that the mere acceptance by a creditor from his debtor of the note of a third person for a pre-existing debt is presumptively a conditional payment. But the law also recognizes the right of the parties to bind themselves by an agreement that the obligation of a third person shall be accepted as an absolute payment, at its face value. The burden of showing such an agreement rests with the party asserting it. We think sufficient was shown to require submission of this question to the jury. In addition to the oral testimony from which such an understanding might be inferred, it appears that the defendant, after receiving the $2,800 on the Brown note, executed and delivered a deed of the property containing a receipt in full of the purchase money, which, prima facie, covered the item in dispute. The effect of this receipt, under the circumstances, was also for the jury: Shepherd v. Busch, 154 Pa. 149. The specifications of error relate mainly to matters of fact which were properly submitted.

The judgment is affirmed.