Dolan v. Freiberg , 4 W. Va. 101 ( 1870 )

Berkshire, J.

The only question presented by this record, is, whether the defendants in error were precluded by their receipt to the plaintiff in error for 170 dollars and 38 cents, mentioned in the latter’s bill of exceptions, from showing by oral testimony, that it did not, in fact, embrace the account sued on, and was not in full of all accounts due from the latter to the former.

The language of the receipt, on which the controversy turns, is, “in full, on account, to date.”

It is maintained by the counsel for the plaintiff in error that this imports an agreement or contract between the parties, which cannot be explained or contradicted by parol proof.

I do not think the authorities relied on by him sustain that position.

Ordinarily, receipts are mere ex parte acknowledgements of payments, or delivery and the like. But they may, and often do contain an agreement or contract between the parties; and as to the former, they are only prima facie, and may be explained, while the latter are conclusive and cannot be contradicted or explained by oral testimony.

The receipt in this case, I think, does not import an agreement or contract between the parties that may not be explained or contradicted by parol evidence, but an ex parte acknowledgment only, which may be.

The acknowledgment that the amount received was in full of an account is no more an agreement between the parties than the receipt of such amount. They seem to m.e to stand on the same footing, and I am unable to see any difference in principle.

In the ease of a receipt for articles to be shipped acknowledging the number, quantity, and condition of the goods at the time of the shipment, it is held that such acknowledgments imply no agreement or contract, and may, therefore, be explained by parol testimony; and I think this case is in principle like such a case : 1 Greenleaf Ev., § 305, Wolee vs. Myers, &c., 3 San’d R., 7; 1 Phil. Ev., 108; 2 Sand. L. & E., 737, Margin; Bloss vs. Plymale et. al., 3 W. V. R., 393.

The judgment must be affirmed with costs and damages.

Brown, Prest., concurred in the judgment. Maxwell, J., expressed no opinion. •

JUDGMENT REVERSED.