Shepherd v. Busch

Opinion by

Mr. Justice Green,

The question whether the two notes for $500 each were taken as absolute payment of that amount of the debt due by the defendant to the plaintiff, was a pure question of fact dependent upon whether an actual agreement to that effect was made by the parties. It was, of course, for the exclusive determination of the jury. The learned court below very correctly instructed them as to their duty and as to the character of the question they were to decide. The whole subject was left entirely to them and they found that the notes were not taken as payment, and an examination of the testimony convinces .us that they could not have done otherwise. The only written evidence . submitted by the defendant in support of his contention was the receipt for $1,405 on account. It is conceded that only $425 was paid in cash and the remainder was made up by the amount of the notes, as is a very common practice in the business world, when notes or other obligations are delivered in making a payment. But it by no means follows from the mere fact of a receipt having been given for the gross sum represented by the cash and paper, that the paper is accepted as absolute payment. That depends upon actual agreement. In determining that question the receipt is some evidence and is to be considered, just as the court below instructed the jury in this case. But when the receipt is intended to be proof of an agreement to receive the paper of third persons as absolute payment of that much in money it ought to say so. This receipt says nothing upon that subject and therefore is very fee-b.le proof in support of such a contention.

The testimony of the plaintiff on the trial is a complete answer to it, if believed by the jury, and the verdict in his favor is conclusive that his testimony was believed.

As to the mere acceptance of the notes, and its effect upon the main question, a single citation from one of our recent decisions is sufficient. In the case of Holmes v. Briggs, 131 Pa. 233, the present Chief Justice said, “Nothing is better settled than, that in the absence of any special agreement to the contrary the mere acceptance by a creditor from his debtor of the note or check of a third person, to the creditor’s order, for a pre-existing indebtedness, is not absolute, but merely conditional payment, defeasible on the dishonor or nonpayment of the note or check, and in that event the debtor remains liable for his original debt.”

In League v. Waring & Co., 85 Pa. 244, we held that where the draft of a third party is received by a creditor from his debtor for a pre-existing debt, the presumption is that it was received as a conditional payment, unless there was an agreement that it was to be an absolute payment, and the burthen of proving such an agreement is upon the debtor.

There is no merit in the fourth assignment of error, and if there were it is of too trifling effect to justify a reversal on that ground.

Judgment affirmed.